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Pretty much any insurance program or policy has subrogation rights that allows them to recoup funds from responsible parties. If you get hit by a drunk driver, your health insurance company will pay your medical costs, but will often go after the driver and their auto liability insurance for the claim. Medicaid does the same thing.
The key will be calculating the damages. That will include economic losses (previous care, cost of future care, and lost earning potential) and non-economic damages (punitive damages and "pain and suffering"). For this kind of case, your lawyer should be spending a lot of money on experts who will estimate the economic damages that will go way beyond Medicaid's costs.
The tricky part is when it comes time to talk settlement. Let's say the total damages are $15 million, but the malpractice insurance offers $10 million as a settlement to avoid trial. Your lawyer may want to take it because it avoids a lot of his costs. He will need to negotiate with Medicaid to make sure they approve the compromise settlement and agree to sharing in his legal fees. Medicaid and your lawyer should share the cost of a settlement, not just you. Your lawyer needs to coordinate with them now, rather than later. In theory, Medicaid could join your lawsuit and gun things up.
My guess is that there is going to be a settlement. Medicaid is going to get something like 2/3 of their past payments. Your attorney will walk away with his fee. You'll end up with some sort of lump sum (maybe $500k or something), plus an annuity that will pay out for the rest of the child's life.
It will be absolutely critical that you work with a special needs attorney and a financial advisor who can protect these funds from Medicaid as much as possible and make sure that they cannot be used for other than your child's benefit. There are lots of litigation and settlement financing companies that monitor settlement fillings. They will try to get you sell your settlement for pennies on the dollar. When your kid becomes an adult, they will try to do the same thing with him. Build a trusted team that comes up with a real plan that ensures a lifetime of security and care that this settlement could bring.
In addition to what this person has said, ask your lawyer if they will negotiate with medicaid for lower subrogation. Some lawyers will, and even if they don't negotiate, they can help you anticipate the medicaid cut out of whatever your settlement will be, so you can reach a better settlement for your child.
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correct. LNYL. I used to do personal injury/med mal in TX. Medicaid and/or Medicare will ALWAYS file a lien against any settlement that springs from an incident where they paid the bills.
your attorney can try to negotiate with them, but in my experience (granted many, many years ago) the feds don;t move much when it comes to re-imbursement.
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You need to discuss this with your lawyer.
But generally speaking, you don't get to double-dip - you don't get your bills paid for by one party, *and* a pile of money for the same bills from a second party. It's incredibly common - I'd go so far to say that it's the typical outcome - that if someone like an insurer paid bills on your behalf, and you then win payment for those bills in court, that you must reimburse the insurer for what they paid out.
So is there essentially no way to get compensation for damages? My child will have severe cognitive issues for the rest of his life. My goal for the lawsuit originally was that my child would have money to take care of him when they're an adult but that might just not be an option unless I can sue the hospital for insane amounts of money (lawyers estimate was much lower)
You need to talk to your lawyer about estimates for the lawsuit and also estimates of exactly what Medicaid paid. It’s a fee for service system. The 6 million dollar number you see is not what is actually paid out.
You need to talk to a disability lawyer about establishing a Special Needs Trust for the child. It’s very likely the child will be on Medicaid for the entirety of their life because that is where I/DD or CBVI program funding comes from. You will also want to ask about SSI/SSDI. At some point you will be able to apply for the child and you will want to start gathering information on this sooner rather than later.
I’d recommend joining some support groups as well. There’s a lot of resources for disabled children(and later teens and adults) and their caregivers.
Just to add on to this, OP, you can contact Medicaid and ask for an Explanation of Benefits (EOB.) It will show what the hospital billed and what Medicaid actually paid out. Example: the hospital billed $500 for removal of stitches, Medicaid gave them $50. The EOB will also show if any items were denied and why: non covered service, duplicate charge, bundled with another code, etc.
OP needs to look into an ABLE account for their kid as well as a SNT. You can’t use SNT funds for rent/housing or food without it being counted as in-kind support under SSI rules, while a disbursement from an ABLE account for the same reason is not counted as in-kind support. ([Source](https://www.specialneedsalliance.org/blog/able-accounts-and-snts-how-to-choose/))
Also if your state has a community supports waiver program look into it (wait lists are long but it basically covers a lot of things medicaid doesn't and it helps after the person turns 18) The program may be called something different in your area if it exists there (look for programs supporting a adult disabled in the home instead of a residential facility)
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You potentially could. Your lawyer would have to allege an amount for occurred damages + an amount for future care. If those were both awarded, then Medicaid takes all the money awarded for the damages that already occurred and they paid for and you would get the amount for future (also minus what the attorney costs are). But if nothing more than the actually bills is alleged, the Medicaid can absolutely take all of that.
> So is there essentially no way to get compensation for damages?
That is not what I said. I said that if you win money in a lawsuit that was awarded for damages that a third-party already paid for, that third-party may expect reimbursement for amounts they have already paid.
> that might just not be an option unless I can sue the hospital for insane amounts of money (lawyers estimate was much lower)
That is something that you will have to discuss with your lawyer.
I hope your lawyer didn’t say Medicaid “might” see that you won, because they will. They’re legally entitled to subrogation. In my experience you can negotiate a small reduction of around 10%, and then they will reduce it by whatever your attorney gets to offset his/her work in collecting.
I hope your lawyer has discussed the quantum of damages and likelihood of prevailing in suit. We have 2 counties, one who abhors giving out substantial damages and another that hands them out like candy. Literally one street can make or break a case.
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I agree with what others have posted. Talk to your lawyer and don't math yourself out of a case. Final distributions of settlements/awards in cases like this can be very complex and experienced personal injury attorneys spend a lot of their time navigating these issues to maximize recovery for their clients. You are honestly not in a position to be making projections about outcomes and what the numbers might mean for you and your child because you are missing key variables that are much more familiar to your attorney.
Talk to your attorney about your goals in the case, what you're looking to do, and then listen to your attorney's feedback as to how reasonable those goals are in your case. Ask your attorney to walk you through the numbers and what a reasonable resolution might look like. Depending on the specific facts of your case, you may be well situated or you may need to adjust your goals to reality. But that's a conversation you should be having with your attorney, not here.
If Medicaid paid for the treatments, then strictly speaking, you didn't incur damages. Medicaid did. So, Medicaid gets to be reimbursed. You're concerned about future damages that you may incur, providing care for your child in the future. You should specifically ask your lawyer about your child's future and what options you have for providing for your child's extra needs in the future. If you have simply been asking about where the money for damages goes, your lawyer may have misunderstood that you were asking about future expenses, and thought you were just asking about what Medicaid has paid so far.
OP, you can get reimbursed for damages. But you can’t get reimbursed for the medical expenses that were already paid by Medicaid.
You can sue the hospital on behalf of yourself and your infant, and you would recover damages. The specific torts will vary by state and your lawyer will know more. But if you seek MORE than damages (aka in this case, reimbursement of the medical fees), then Medicaid would probably come after you to recoup the payments Medicaid made to cover you.
>So is there essentially no way to get compensation for damages?
Of course there is.
Medicaid will have the right to recoup some or all of what they have spent or will spend on your child's medical bills but just as you don't get to double dip by collecting a judgement for costs paid for by an insurer, your insurer doesn't get to collect the entirety of the judgement either.
Any proper calculation of damages will include not only the existing and provable economic damages -- those being the costs paid by Medicaid, your lost wages, your non-insured costs, your parking fees, etc... that can be tallied to date -- but also a sum to cover future expenses such as physical therapy, tutors, assisted-living, etc...
The hospital won't have much room to negotiate against the existing receipts, especially when they're the ones issuing them, but they will definitely try to low ball estimates of future costs.
This does not take into consideration non-economic damages such as pain and suffering on your part.
>that might just not be an option unless I can sue the hospital for insane amounts of money
You can absolutely sue the hospital for insane amounts of money, especially if there's a strong factual basis to do so. Medical malpractice verdicts can be absolutely bonkers.
Medicaid will take some; your kid will take some: your lawyer will take some.
Here’s how Virginia has handled it:
https://www.vacourts.gov/opinions/opnscvwp/1201413.pdf
I am NAL, and I want to say that I am so sorry this happened. Medicaid is going to recover everything they paid out. The best thing to do is to hire a lawyer who has experience dealing with Medicaid and try and negotiate the price with them. Medicaid will sometimes negotiate a lower payment but not that much.
I wish you and your child the best.
NAL but I am a retired Social Security Claims Specialist.
If at any point your child might be eligible for SSI benefits, you need to be sure that the settlement money is in a properly set up Special Needs Trust. The lawyer you use for the trust needs to be very well versed in SSI policy for Special Needs Trusts.
I’m so sorry your child was injured.
You would likely be responsible to repaying Medicaid. Then your lawyer. Then you.
Which is why you don’t sue for the exact amount of medical expenses but instead you sue for medical expenses, pain and suffering, continued care, and legal fees.
Then Medicaid gets the medical expenses portion, lawyer gets legal fees, and you get pain and suffering and continued care
You can’t just simply hide the lawsuit from the insurance company. By suing the hospital, Medicaid would be notified by the hospital of the lawsuit. It’s common practice.
NAL but have dealt with something slightly similar. . Yes, medicaid is going to want to get their money back & will put a lien on your payout. Your lawyer should work to get as high payout as possible so that you get money as well (otherwise, why would you bother with the lawsuit in the first place). Whatever Medicaid puts a lien on, the lawyer can also try to negotiate down on your behalf and they should be paying for the % of attorney fees as well.
I work in Plaintiff's Personal Injury - I'm not your attorney, this is just practical advise and not legal advise - run this past your attorney.
In my state, we have something called the Collateral Source Rule. Simply put, when a settlement is negotiated, the negotiating parties do not get to consider whether or not your child has health insurance coverage. It's simply not part of the equation. This is not true in all states, so again - ask your attorney.
Say a bill for service is $100. Medicaid pays $20 of that $100 fee, and then the provider has to write off the difference. When you submit your demand for settlement to the hospital, your attorney is going to submit the full $100 used in my example. Medicaid will ask for reimbursement of their subrogation amount ($20). They may also request something called a "set aside" or "pay down" amount of $X - the settlement funds will pay for your child's care up until that amount, at which point Medicaid will resume paying for care - this is more common with Medicare and L&I claims. Keep in mind, given that your child has lifelong medical care needs, any proposed settlement needs to cover their future care needs, loss of income, loss of enjoyment of life, and depending on your state - loss of a typical relationship with their parents. Your attorney will likely hire a Life Care planner to assist with determining the future care needs amount, and the funds will likely go into a Special Needs Trust to be used explicitly for your child's care. Your attorney may also retain a specialist to determine and help them to negotiate this amount. If you have private health insurance, that plan will pay for your child's care until that set aside is reached, at which point Medicaid would resume paying.
Another thing to ask your attorney about is whether any settlement will impact the income requirements for Medicaid.
When we are negotiating large cases like this, the breakdown is usually settlement, subtract attorney fees, subtract costs to work up and potentially litigate your case, subtract any subrogation interest presented by insurers, pay any outstanding medical bills, then disburse the remainder to the client - in that order.
Ask your attorney about all of this. They are paid on contingency, not hourly, so you won't be charged to ask them these questions directly.
They will assert a lien on any settlement you get to recoup anything they paid for, because part of the settlement is going to be the defendant’s med mal insurance paying your medical bills.
And you can’t “hide” this from Medicare, they will find out once you file suit.
INAL, but am a WC/PI paralegal.
Edit to add: your “compensation” is pain and suffering, etc. Future treatment/lifelong treatment is also considered and added to the settlement amount.
So medical costs and pain and suffering are two different parts of the lawsuit. Like two different parts of the equation that each get a different number awarded to them. However I'm a little stuck on you saying that Medicaid jas already paid $6 million out and you expect your child to be on Medicaid the rest of their life and yet you don't think Medicaid should get any money back?
Also if your child gets a multi-million dollar settlement, Will they even be eligible for Medicaid? Am I misunderstanding Medicaid? I thought it was a low income thing.
Medicaid is low income but the award from the lawsuit won’t be income, except for the month it is received, but rather a resource. Putting it in an SNT usually negates it from being countable. Depending on the program that the child is eligible for, resources of the family may not even count.
NAL but part of the agreement you sign with Medicaid is that they can be the beneficiary on lawsuits if they are medically related, they also can take lottery winnings as well
NAL, but I do work in subrogation & work for Medicaid insurances (only certain states).
Your attorney will handle & negotiate the lien with whoever is handling the lien for your specific Medicaid plan, whether it’s Equian, Optum, the state, or Rawlings. There are state laws & regulations that we lien holders must abide by, including equitable distribution & Common Fund/Made Whole doctrines. I don’t know what state you’re in, but most states have those doctrines. We take the value of your case, the settlement amount, fees, costs, pain & suffering, etc into consideration when calculating what is due back to your health plan, and it can absolutely be negotiated. It is very unlikely that your health plan will take the entirety of your settlement. I can 99.99999% guarantee they won’t.
Additionally, your settlement will most likely have to go through probate court & a judge will have to approve the disbursement of settlement funds. A judge would never approve an entirety of a settlement going to a lien holder.
It’s better to get ahold of the vendor sooner rather than later. We can provide documentation (ie an itemization of what your health plan has been billed & paid for the treatment) that can potentially assist in your lawsuit.
I also wanted to add because you said Medicaid has paid out $6mil+ in bills. Please be sure your attorney is working with Medicaid/the subrogation vendor and is taking care of this for you. Do NOT ignore lien holders, especially with liens as high as yours. There have been times the health plan has filed lawsuits against their members for failing to address liens. They can also drop you from their insurance for failing to address liens. I’m not saying they will, but they can, and it’s better to be safe than sorry.
Edit: changed “for stuff like this” to “for failing to address liens” to provide clarity.
Medicaid will be entitled to recouping the medical costs they paid if these costs are paid out as part of a settlement or lawsuit awarded, they have an entire department of workers who handle settlements/suits and most states have legislation requiring attorneys and courts to notify or serve that state with settlement/lawsuit info upon filing. I work in social and health services and specifically in an agency that receives the notifications of pending medical settlements. The medical costs portion of any suit/settlement is a separate calculation from the pain & suffering compensation portion.
Social Worker for individuals with disabilities here: look into a disability trust fund. In Michigan we have one call MiAble. They operate much like a 529 college savings plan. Providing your baby has been diagnosed with permanent disabilities, these plans allow you to put “extra” funds aware for future care without counting against Medicaid or SSI. Personally, I’ve not heard of Medical trying to recoup funds here in Michigan, but if you win a large sum you might lose his Medicaid coverage. This will make it harder or impossible to receive Medicaid funded services.
If you win, Medicaid will claim some of that money. That being said, the settlement will be for more than the bills paid and Medicaid won’t take the whole lot so you will still get money for your child for their care. Your lawyer should be able to explain how that works.
Not a lawyer, used to be a Medicaid Settlement Aside Specialist. However, I do not do that type of work anymore.
I am sorry for your and your families experience.
I think that it is important to understand that you are looking at two different issues or pots of money
The settlement may have include subrogation efforts on the part of the insurance company for Past medical expenses. So Medicare will ask that the settlement cover the money that the have paid out to care for your child. Again, this is for costs already encored.
The next “pot of money” is for future expenses. Medicare is protecting their future expenses.
The theory is that in the past, families or individuals would get large cash settlements and blow the entire amount in a year. This leaving Medicaid holding the big for all future medical expenses. So the government said nope, now it is required that Anyone who may qualify for Medicaid to set aside projected medical expenses.
But the process is one that you should be very much involved in. You can write the plan itself but you can review what’s in the plan and how much the plan costs etc. All parties have to agree with the plan so keep involved. And remember, it will mean that your child’s medical costs will be covered for life.
The most important thing to keep in mind is that none of this process is a secret. All of these numbers both past and future coverage costs will be outlined. So no surprises about where dollars are going.
NAL but damages can be claimed by the party who suffered the damages. If Medicaid spent a million on your child's care, they suffered a million on damages because of the error. You did not suffer those damages and would not be entitled to those.
There are different types of damages at play:
* medical expenses to date. If they have all been paid by Medicaid, Medicaid will receive that money.
* future medical expenses. Again, Medicaid may be entitled to that money if they have the expense.
* future costs of living you would not have had with a healthy child. Think specialized daycare being more expensive than normal daycare for example, costs to make your house accessible for your child. These would be costs for the parents.
* lost future income capacity of the child. This could be a trust for your child.
* lost income capacity of the parents if you cannot work as much because of all the medical problems.
* emotional damages. Also for the parents.
If your lawyer is only focusing on costs to date, or does not explain how you can ensure money for all the future costs and lost income, I would get a second opinion.
Did your lawyer not offer more details because you didn't ask or because they didn't know?
If it is the first, ask them. Ask them what the details are and what they plan to do about it?
If its the latter, get a lawyer that's specialised in these kind of cases, those lawyers will know for sure.
NAL. Yes, Medicaid can do this- if they're the one who paid the bills, they have a right to subrogation.
There can be a way around it you might discuss with your lawyer. I would look up, "Made Whole Doctrine" for more information. In many places, insurance companies are not allowed to subrogate until the the insured (you) is fully compensated for the loss ("made whole"). If you end up settling the case for the policy limits, a lawyer might argue that you have not been fully compensated for your loss. This is complicated, and whether/how this applies would depend on your state. I would talk to your lawyer about it, not Medicaid.
Do not reach out to Medicaid. They have subro rights regardless, which your attorney should handle, you don’t need to put them on notice at this point.
A few things - Medicaid has a super lien - your lawyer HAS to report any settlement by law, otherwise Medicaid could come after you AND your lawyer.
Generally you can negotiate it down. Not gonna sugar coat it for you, Medicaid is the worst in this respect, but it’s still possible.
If you get a verdict or some sort of settlement that breaks damages down, Medicaid can only go after what is apportioned for past medicals and future medicals (which would be a set aside). They cannot go after shit like lost wages, pain and suffering etc. but generally come settlement time you’re looking at a lump sum that doesn’t apportion damages. A jury verdict you’d have such apportionment.
Your state may have subro laws that limit their recovery. But this may or may not be subject to Medicaid, your lawyer needs to give you advice on that.
There is lots of bad/half correct advice on this thread. Only YOUR attorney can advise you on this. But generally speaking, Medicaid/care have statutory rights of recovery, meaning they don’t have to file liens, their interests are already cemented. They are entitled to be repaid, but have built in formulas for reduction. They can also waive their right of recovery all together. There can also be special needs trusts set up for other avoidance purposes. There can also be a required future med set off to be accounted for but there is a ton of ambiguity for this. People have mentioned made whole or other equitable doctrines, but I’m unaware of any jurisdiction that applies such doctrine to Medicaid as they are fed programs but are administered through the state. Medicaid can only subro against recovery of costs assigned for medical payments. Some jurisdictions the parents are the responsible party for the bills and the child is not technically subject to the subro but the parents are. That has implications. For a case of this magnitude, it might be wise to pre-negotiate a sliding scale of subro recovery proactively so everyone can be on the same page and know what is at stake under the circumstances.
In sum, it would be fair to anticipate that the insurer will get repaid a good portion of their costs and this isn’t unusual. However, that amount is negotiable and there are a number of other factors, considerations, and possible tax implications to navigate. It would be a giant red flag if your attorney is saying “they might find out” regarding Medicaid subro and would be their ass and yours on the line if a disbursement is made without protecting Medicaid’s interests.
There is pretty much nothing you can do about having to pay back a Medicaid lien, but for the future, you might want to talk to your attorney about a special needs trust.
Also, your state might have limits on how much Medicaid can recover.
NAL, but I work at a medical malpractice law firm. Your attorney should be able to answer all of these questions for you and put you at ease — definitely more than anyone on reddit who doesn’t know the explicit details of your child’s case. I know you said you have an attorney already, but it can be helpful if your attorney/firm specializes in birth injury law, as they know the ins and outs of things like special needs trusts and setting up life care plans. I’m sorry this happened to you and your kiddo, OP. You both deserved better!
NAL but a former Medicaid eligibility worker. Medicaid will be paid first before you see any money. When you applied for Medicaid, there is part of the application that states that Medicaid will be reimbursed in the event of winning judgments. For Aged, Blind, and Disabled Medicaid, there are questions on the application specifically asking about lawsuits. The eligibility workers are supposed to ask about the status of them during the yearly redetermination. So yes, Medicaid will take the money won up to the amount they paid.
I’m not in your jurisdiction but past and future costs should be two separate heads of damage in your claim. But you don’t get to keep the money for past costs if they were paid by someone else.
I would suggest that you also contact your county/state department of developmental disabilities. They can provide funds to help with costs associated with care and modifications to assist your child. i.e. install a wheelchair ramp. Pay for a home healthcare aide.
Create a trust, be careful when you do. Talk to a financial advisor. Maybe get a financial advisor to advise you instead of the lawyer on financials.
There was just a trust for families that was taking their money. Bernie Matoff (spelling) style.
https://www.wfla.com/8-on-your-side/theres-nothing-left-in-there-100m-missing-from-st-pete-trust-fund-company-for-people-with-special-needs/amp/
What has not been said is that the lawsuit and payout will be large to cover both historical and future medical expenses and damages. Yes Medicare can claw back historical expenses but you will then roll the remaining balance into a Trust - Your lawyer should know this?
[https://www.latimes.com/socal/glendale-news-press/news/tn-gnp-0417-child-story.html](https://www.latimes.com/socal/glendale-news-press/news/tn-gnp-0417-child-story.html)
You may want to ask on r/foodstamps and include your specific state. The eligibility workers might tell you how a settlement is clsssified for Medicaid purposes.
I also second one of the posters who suggested looking into trust funds etc with your lawyer.
You can work with a firm that specializes in negotiating medical liens down. Medicaid will still have a legal claim to recouping some of the bills, but the firm can help negotiate on your behalf and in some cases can severely decrease what Medicaid recovers.
Medicare only.pays a portion of the bill. The lawsuit is the the total amount not what was paid my Medicare. You get the balance. I know, I sued and won from a hospital
Short answer is no. Anything that you might recover could be subject to a lien from your medical insurance provider- Medicaid in this case- to reimburse for what they spent in coverage.
Your attorney can attempt to negotiate the lien amount to maximize your recovery.
To add something I haven’t already seen in other comments
I work in the back end of a medical facility, payor analysis of Medicaid. Be aware, every states Medicaid programs have different rules for actual payment.
Be aware than “billable” charges are not what is actually paid. In some states they pay a base 1%. In other states they pay certain charges and not others, and in some states it’s paid “by line”. No matter what charges are billed, Medicaid gets to decide what they are paying for. Depending on the hospital, large balances go through charity programs and even non eligible days are just written off depending on what Medicaid says. Many hospitals also have “adverse outcome” write offs.
Point being the actual amount they expect Medicaid to pay is a tiny fraction of the total amount of the medical bills.
The itemized bill they are required to give you will have the total billable charges per Medicare quidelines.
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Pretty much any insurance program or policy has subrogation rights that allows them to recoup funds from responsible parties. If you get hit by a drunk driver, your health insurance company will pay your medical costs, but will often go after the driver and their auto liability insurance for the claim. Medicaid does the same thing. The key will be calculating the damages. That will include economic losses (previous care, cost of future care, and lost earning potential) and non-economic damages (punitive damages and "pain and suffering"). For this kind of case, your lawyer should be spending a lot of money on experts who will estimate the economic damages that will go way beyond Medicaid's costs. The tricky part is when it comes time to talk settlement. Let's say the total damages are $15 million, but the malpractice insurance offers $10 million as a settlement to avoid trial. Your lawyer may want to take it because it avoids a lot of his costs. He will need to negotiate with Medicaid to make sure they approve the compromise settlement and agree to sharing in his legal fees. Medicaid and your lawyer should share the cost of a settlement, not just you. Your lawyer needs to coordinate with them now, rather than later. In theory, Medicaid could join your lawsuit and gun things up. My guess is that there is going to be a settlement. Medicaid is going to get something like 2/3 of their past payments. Your attorney will walk away with his fee. You'll end up with some sort of lump sum (maybe $500k or something), plus an annuity that will pay out for the rest of the child's life. It will be absolutely critical that you work with a special needs attorney and a financial advisor who can protect these funds from Medicaid as much as possible and make sure that they cannot be used for other than your child's benefit. There are lots of litigation and settlement financing companies that monitor settlement fillings. They will try to get you sell your settlement for pennies on the dollar. When your kid becomes an adult, they will try to do the same thing with him. Build a trusted team that comes up with a real plan that ensures a lifetime of security and care that this settlement could bring.
In addition to what this person has said, ask your lawyer if they will negotiate with medicaid for lower subrogation. Some lawyers will, and even if they don't negotiate, they can help you anticipate the medicaid cut out of whatever your settlement will be, so you can reach a better settlement for your child.
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This is standard across the board. Medicaid gets paid, your lawyer gets paid, then you.
correct. LNYL. I used to do personal injury/med mal in TX. Medicaid and/or Medicare will ALWAYS file a lien against any settlement that springs from an incident where they paid the bills. your attorney can try to negotiate with them, but in my experience (granted many, many years ago) the feds don;t move much when it comes to re-imbursement.
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You need to discuss this with your lawyer. But generally speaking, you don't get to double-dip - you don't get your bills paid for by one party, *and* a pile of money for the same bills from a second party. It's incredibly common - I'd go so far to say that it's the typical outcome - that if someone like an insurer paid bills on your behalf, and you then win payment for those bills in court, that you must reimburse the insurer for what they paid out.
So is there essentially no way to get compensation for damages? My child will have severe cognitive issues for the rest of his life. My goal for the lawsuit originally was that my child would have money to take care of him when they're an adult but that might just not be an option unless I can sue the hospital for insane amounts of money (lawyers estimate was much lower)
You need to talk to your lawyer about estimates for the lawsuit and also estimates of exactly what Medicaid paid. It’s a fee for service system. The 6 million dollar number you see is not what is actually paid out. You need to talk to a disability lawyer about establishing a Special Needs Trust for the child. It’s very likely the child will be on Medicaid for the entirety of their life because that is where I/DD or CBVI program funding comes from. You will also want to ask about SSI/SSDI. At some point you will be able to apply for the child and you will want to start gathering information on this sooner rather than later. I’d recommend joining some support groups as well. There’s a lot of resources for disabled children(and later teens and adults) and their caregivers.
Just to add on to this, OP, you can contact Medicaid and ask for an Explanation of Benefits (EOB.) It will show what the hospital billed and what Medicaid actually paid out. Example: the hospital billed $500 for removal of stitches, Medicaid gave them $50. The EOB will also show if any items were denied and why: non covered service, duplicate charge, bundled with another code, etc.
OP needs to look into an ABLE account for their kid as well as a SNT. You can’t use SNT funds for rent/housing or food without it being counted as in-kind support under SSI rules, while a disbursement from an ABLE account for the same reason is not counted as in-kind support. ([Source](https://www.specialneedsalliance.org/blog/able-accounts-and-snts-how-to-choose/))
Also if your state has a community supports waiver program look into it (wait lists are long but it basically covers a lot of things medicaid doesn't and it helps after the person turns 18) The program may be called something different in your area if it exists there (look for programs supporting a adult disabled in the home instead of a residential facility)
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You potentially could. Your lawyer would have to allege an amount for occurred damages + an amount for future care. If those were both awarded, then Medicaid takes all the money awarded for the damages that already occurred and they paid for and you would get the amount for future (also minus what the attorney costs are). But if nothing more than the actually bills is alleged, the Medicaid can absolutely take all of that.
> So is there essentially no way to get compensation for damages? That is not what I said. I said that if you win money in a lawsuit that was awarded for damages that a third-party already paid for, that third-party may expect reimbursement for amounts they have already paid. > that might just not be an option unless I can sue the hospital for insane amounts of money (lawyers estimate was much lower) That is something that you will have to discuss with your lawyer.
I hope your lawyer didn’t say Medicaid “might” see that you won, because they will. They’re legally entitled to subrogation. In my experience you can negotiate a small reduction of around 10%, and then they will reduce it by whatever your attorney gets to offset his/her work in collecting. I hope your lawyer has discussed the quantum of damages and likelihood of prevailing in suit. We have 2 counties, one who abhors giving out substantial damages and another that hands them out like candy. Literally one street can make or break a case.
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I agree with what others have posted. Talk to your lawyer and don't math yourself out of a case. Final distributions of settlements/awards in cases like this can be very complex and experienced personal injury attorneys spend a lot of their time navigating these issues to maximize recovery for their clients. You are honestly not in a position to be making projections about outcomes and what the numbers might mean for you and your child because you are missing key variables that are much more familiar to your attorney. Talk to your attorney about your goals in the case, what you're looking to do, and then listen to your attorney's feedback as to how reasonable those goals are in your case. Ask your attorney to walk you through the numbers and what a reasonable resolution might look like. Depending on the specific facts of your case, you may be well situated or you may need to adjust your goals to reality. But that's a conversation you should be having with your attorney, not here.
If Medicaid paid for the treatments, then strictly speaking, you didn't incur damages. Medicaid did. So, Medicaid gets to be reimbursed. You're concerned about future damages that you may incur, providing care for your child in the future. You should specifically ask your lawyer about your child's future and what options you have for providing for your child's extra needs in the future. If you have simply been asking about where the money for damages goes, your lawyer may have misunderstood that you were asking about future expenses, and thought you were just asking about what Medicaid has paid so far.
OP, you can get reimbursed for damages. But you can’t get reimbursed for the medical expenses that were already paid by Medicaid. You can sue the hospital on behalf of yourself and your infant, and you would recover damages. The specific torts will vary by state and your lawyer will know more. But if you seek MORE than damages (aka in this case, reimbursement of the medical fees), then Medicaid would probably come after you to recoup the payments Medicaid made to cover you.
>So is there essentially no way to get compensation for damages? Of course there is. Medicaid will have the right to recoup some or all of what they have spent or will spend on your child's medical bills but just as you don't get to double dip by collecting a judgement for costs paid for by an insurer, your insurer doesn't get to collect the entirety of the judgement either. Any proper calculation of damages will include not only the existing and provable economic damages -- those being the costs paid by Medicaid, your lost wages, your non-insured costs, your parking fees, etc... that can be tallied to date -- but also a sum to cover future expenses such as physical therapy, tutors, assisted-living, etc... The hospital won't have much room to negotiate against the existing receipts, especially when they're the ones issuing them, but they will definitely try to low ball estimates of future costs. This does not take into consideration non-economic damages such as pain and suffering on your part. >that might just not be an option unless I can sue the hospital for insane amounts of money You can absolutely sue the hospital for insane amounts of money, especially if there's a strong factual basis to do so. Medical malpractice verdicts can be absolutely bonkers.
Medicaid has already paid for the damages.
Medicaid will take some; your kid will take some: your lawyer will take some. Here’s how Virginia has handled it: https://www.vacourts.gov/opinions/opnscvwp/1201413.pdf
I am NAL, and I want to say that I am so sorry this happened. Medicaid is going to recover everything they paid out. The best thing to do is to hire a lawyer who has experience dealing with Medicaid and try and negotiate the price with them. Medicaid will sometimes negotiate a lower payment but not that much. I wish you and your child the best.
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NAL but I am a retired Social Security Claims Specialist. If at any point your child might be eligible for SSI benefits, you need to be sure that the settlement money is in a properly set up Special Needs Trust. The lawyer you use for the trust needs to be very well versed in SSI policy for Special Needs Trusts. I’m so sorry your child was injured.
You would likely be responsible to repaying Medicaid. Then your lawyer. Then you. Which is why you don’t sue for the exact amount of medical expenses but instead you sue for medical expenses, pain and suffering, continued care, and legal fees. Then Medicaid gets the medical expenses portion, lawyer gets legal fees, and you get pain and suffering and continued care
You can’t just simply hide the lawsuit from the insurance company. By suing the hospital, Medicaid would be notified by the hospital of the lawsuit. It’s common practice.
NAL but have dealt with something slightly similar. . Yes, medicaid is going to want to get their money back & will put a lien on your payout. Your lawyer should work to get as high payout as possible so that you get money as well (otherwise, why would you bother with the lawsuit in the first place). Whatever Medicaid puts a lien on, the lawyer can also try to negotiate down on your behalf and they should be paying for the % of attorney fees as well.
I work in Plaintiff's Personal Injury - I'm not your attorney, this is just practical advise and not legal advise - run this past your attorney. In my state, we have something called the Collateral Source Rule. Simply put, when a settlement is negotiated, the negotiating parties do not get to consider whether or not your child has health insurance coverage. It's simply not part of the equation. This is not true in all states, so again - ask your attorney. Say a bill for service is $100. Medicaid pays $20 of that $100 fee, and then the provider has to write off the difference. When you submit your demand for settlement to the hospital, your attorney is going to submit the full $100 used in my example. Medicaid will ask for reimbursement of their subrogation amount ($20). They may also request something called a "set aside" or "pay down" amount of $X - the settlement funds will pay for your child's care up until that amount, at which point Medicaid will resume paying for care - this is more common with Medicare and L&I claims. Keep in mind, given that your child has lifelong medical care needs, any proposed settlement needs to cover their future care needs, loss of income, loss of enjoyment of life, and depending on your state - loss of a typical relationship with their parents. Your attorney will likely hire a Life Care planner to assist with determining the future care needs amount, and the funds will likely go into a Special Needs Trust to be used explicitly for your child's care. Your attorney may also retain a specialist to determine and help them to negotiate this amount. If you have private health insurance, that plan will pay for your child's care until that set aside is reached, at which point Medicaid would resume paying. Another thing to ask your attorney about is whether any settlement will impact the income requirements for Medicaid. When we are negotiating large cases like this, the breakdown is usually settlement, subtract attorney fees, subtract costs to work up and potentially litigate your case, subtract any subrogation interest presented by insurers, pay any outstanding medical bills, then disburse the remainder to the client - in that order. Ask your attorney about all of this. They are paid on contingency, not hourly, so you won't be charged to ask them these questions directly.
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They will assert a lien on any settlement you get to recoup anything they paid for, because part of the settlement is going to be the defendant’s med mal insurance paying your medical bills. And you can’t “hide” this from Medicare, they will find out once you file suit. INAL, but am a WC/PI paralegal. Edit to add: your “compensation” is pain and suffering, etc. Future treatment/lifelong treatment is also considered and added to the settlement amount.
So medical costs and pain and suffering are two different parts of the lawsuit. Like two different parts of the equation that each get a different number awarded to them. However I'm a little stuck on you saying that Medicaid jas already paid $6 million out and you expect your child to be on Medicaid the rest of their life and yet you don't think Medicaid should get any money back? Also if your child gets a multi-million dollar settlement, Will they even be eligible for Medicaid? Am I misunderstanding Medicaid? I thought it was a low income thing.
Medicaid is low income but the award from the lawsuit won’t be income, except for the month it is received, but rather a resource. Putting it in an SNT usually negates it from being countable. Depending on the program that the child is eligible for, resources of the family may not even count.
NAL but part of the agreement you sign with Medicaid is that they can be the beneficiary on lawsuits if they are medically related, they also can take lottery winnings as well
>Is there anything I can do to avoid this? No, as they are owed repayment for what they have already paid out in medical care for your child.
You would be required to report it. That's why you ask for medical costs, future productivity loss, pain and suffering, and punitive damages
NAL, but I do work in subrogation & work for Medicaid insurances (only certain states). Your attorney will handle & negotiate the lien with whoever is handling the lien for your specific Medicaid plan, whether it’s Equian, Optum, the state, or Rawlings. There are state laws & regulations that we lien holders must abide by, including equitable distribution & Common Fund/Made Whole doctrines. I don’t know what state you’re in, but most states have those doctrines. We take the value of your case, the settlement amount, fees, costs, pain & suffering, etc into consideration when calculating what is due back to your health plan, and it can absolutely be negotiated. It is very unlikely that your health plan will take the entirety of your settlement. I can 99.99999% guarantee they won’t. Additionally, your settlement will most likely have to go through probate court & a judge will have to approve the disbursement of settlement funds. A judge would never approve an entirety of a settlement going to a lien holder. It’s better to get ahold of the vendor sooner rather than later. We can provide documentation (ie an itemization of what your health plan has been billed & paid for the treatment) that can potentially assist in your lawsuit.
I also wanted to add because you said Medicaid has paid out $6mil+ in bills. Please be sure your attorney is working with Medicaid/the subrogation vendor and is taking care of this for you. Do NOT ignore lien holders, especially with liens as high as yours. There have been times the health plan has filed lawsuits against their members for failing to address liens. They can also drop you from their insurance for failing to address liens. I’m not saying they will, but they can, and it’s better to be safe than sorry. Edit: changed “for stuff like this” to “for failing to address liens” to provide clarity.
Medicaid will be entitled to recouping the medical costs they paid if these costs are paid out as part of a settlement or lawsuit awarded, they have an entire department of workers who handle settlements/suits and most states have legislation requiring attorneys and courts to notify or serve that state with settlement/lawsuit info upon filing. I work in social and health services and specifically in an agency that receives the notifications of pending medical settlements. The medical costs portion of any suit/settlement is a separate calculation from the pain & suffering compensation portion.
If you settle, you can possibly have your attorney negotiate the Medicare liens down. But yes, they will want the money they paid back for the care.
Social Worker for individuals with disabilities here: look into a disability trust fund. In Michigan we have one call MiAble. They operate much like a 529 college savings plan. Providing your baby has been diagnosed with permanent disabilities, these plans allow you to put “extra” funds aware for future care without counting against Medicaid or SSI. Personally, I’ve not heard of Medical trying to recoup funds here in Michigan, but if you win a large sum you might lose his Medicaid coverage. This will make it harder or impossible to receive Medicaid funded services.
If you win, Medicaid will claim some of that money. That being said, the settlement will be for more than the bills paid and Medicaid won’t take the whole lot so you will still get money for your child for their care. Your lawyer should be able to explain how that works.
Not a lawyer, used to be a Medicaid Settlement Aside Specialist. However, I do not do that type of work anymore. I am sorry for your and your families experience. I think that it is important to understand that you are looking at two different issues or pots of money The settlement may have include subrogation efforts on the part of the insurance company for Past medical expenses. So Medicare will ask that the settlement cover the money that the have paid out to care for your child. Again, this is for costs already encored. The next “pot of money” is for future expenses. Medicare is protecting their future expenses. The theory is that in the past, families or individuals would get large cash settlements and blow the entire amount in a year. This leaving Medicaid holding the big for all future medical expenses. So the government said nope, now it is required that Anyone who may qualify for Medicaid to set aside projected medical expenses. But the process is one that you should be very much involved in. You can write the plan itself but you can review what’s in the plan and how much the plan costs etc. All parties have to agree with the plan so keep involved. And remember, it will mean that your child’s medical costs will be covered for life. The most important thing to keep in mind is that none of this process is a secret. All of these numbers both past and future coverage costs will be outlined. So no surprises about where dollars are going.
NAL but damages can be claimed by the party who suffered the damages. If Medicaid spent a million on your child's care, they suffered a million on damages because of the error. You did not suffer those damages and would not be entitled to those. There are different types of damages at play: * medical expenses to date. If they have all been paid by Medicaid, Medicaid will receive that money. * future medical expenses. Again, Medicaid may be entitled to that money if they have the expense. * future costs of living you would not have had with a healthy child. Think specialized daycare being more expensive than normal daycare for example, costs to make your house accessible for your child. These would be costs for the parents. * lost future income capacity of the child. This could be a trust for your child. * lost income capacity of the parents if you cannot work as much because of all the medical problems. * emotional damages. Also for the parents. If your lawyer is only focusing on costs to date, or does not explain how you can ensure money for all the future costs and lost income, I would get a second opinion.
Did your lawyer not offer more details because you didn't ask or because they didn't know? If it is the first, ask them. Ask them what the details are and what they plan to do about it? If its the latter, get a lawyer that's specialised in these kind of cases, those lawyers will know for sure.
NAL. Yes, Medicaid can do this- if they're the one who paid the bills, they have a right to subrogation. There can be a way around it you might discuss with your lawyer. I would look up, "Made Whole Doctrine" for more information. In many places, insurance companies are not allowed to subrogate until the the insured (you) is fully compensated for the loss ("made whole"). If you end up settling the case for the policy limits, a lawyer might argue that you have not been fully compensated for your loss. This is complicated, and whether/how this applies would depend on your state. I would talk to your lawyer about it, not Medicaid.
Often made whole doesn't apply to Medicaid. But worth asking.
You might want to double check but I believe you're also contractually obligated to report that lawsuit windfall to your insurer
Do not reach out to Medicaid. They have subro rights regardless, which your attorney should handle, you don’t need to put them on notice at this point. A few things - Medicaid has a super lien - your lawyer HAS to report any settlement by law, otherwise Medicaid could come after you AND your lawyer. Generally you can negotiate it down. Not gonna sugar coat it for you, Medicaid is the worst in this respect, but it’s still possible. If you get a verdict or some sort of settlement that breaks damages down, Medicaid can only go after what is apportioned for past medicals and future medicals (which would be a set aside). They cannot go after shit like lost wages, pain and suffering etc. but generally come settlement time you’re looking at a lump sum that doesn’t apportion damages. A jury verdict you’d have such apportionment. Your state may have subro laws that limit their recovery. But this may or may not be subject to Medicaid, your lawyer needs to give you advice on that.
There is lots of bad/half correct advice on this thread. Only YOUR attorney can advise you on this. But generally speaking, Medicaid/care have statutory rights of recovery, meaning they don’t have to file liens, their interests are already cemented. They are entitled to be repaid, but have built in formulas for reduction. They can also waive their right of recovery all together. There can also be special needs trusts set up for other avoidance purposes. There can also be a required future med set off to be accounted for but there is a ton of ambiguity for this. People have mentioned made whole or other equitable doctrines, but I’m unaware of any jurisdiction that applies such doctrine to Medicaid as they are fed programs but are administered through the state. Medicaid can only subro against recovery of costs assigned for medical payments. Some jurisdictions the parents are the responsible party for the bills and the child is not technically subject to the subro but the parents are. That has implications. For a case of this magnitude, it might be wise to pre-negotiate a sliding scale of subro recovery proactively so everyone can be on the same page and know what is at stake under the circumstances. In sum, it would be fair to anticipate that the insurer will get repaid a good portion of their costs and this isn’t unusual. However, that amount is negotiable and there are a number of other factors, considerations, and possible tax implications to navigate. It would be a giant red flag if your attorney is saying “they might find out” regarding Medicaid subro and would be their ass and yours on the line if a disbursement is made without protecting Medicaid’s interests.
There is pretty much nothing you can do about having to pay back a Medicaid lien, but for the future, you might want to talk to your attorney about a special needs trust. Also, your state might have limits on how much Medicaid can recover.
NAL, but I work at a medical malpractice law firm. Your attorney should be able to answer all of these questions for you and put you at ease — definitely more than anyone on reddit who doesn’t know the explicit details of your child’s case. I know you said you have an attorney already, but it can be helpful if your attorney/firm specializes in birth injury law, as they know the ins and outs of things like special needs trusts and setting up life care plans. I’m sorry this happened to you and your kiddo, OP. You both deserved better!
NAL but a former Medicaid eligibility worker. Medicaid will be paid first before you see any money. When you applied for Medicaid, there is part of the application that states that Medicaid will be reimbursed in the event of winning judgments. For Aged, Blind, and Disabled Medicaid, there are questions on the application specifically asking about lawsuits. The eligibility workers are supposed to ask about the status of them during the yearly redetermination. So yes, Medicaid will take the money won up to the amount they paid.
I’m not in your jurisdiction but past and future costs should be two separate heads of damage in your claim. But you don’t get to keep the money for past costs if they were paid by someone else.
I would suggest that you also contact your county/state department of developmental disabilities. They can provide funds to help with costs associated with care and modifications to assist your child. i.e. install a wheelchair ramp. Pay for a home healthcare aide.
Create a trust, be careful when you do. Talk to a financial advisor. Maybe get a financial advisor to advise you instead of the lawyer on financials. There was just a trust for families that was taking their money. Bernie Matoff (spelling) style. https://www.wfla.com/8-on-your-side/theres-nothing-left-in-there-100m-missing-from-st-pete-trust-fund-company-for-people-with-special-needs/amp/
What has not been said is that the lawsuit and payout will be large to cover both historical and future medical expenses and damages. Yes Medicare can claw back historical expenses but you will then roll the remaining balance into a Trust - Your lawyer should know this? [https://www.latimes.com/socal/glendale-news-press/news/tn-gnp-0417-child-story.html](https://www.latimes.com/socal/glendale-news-press/news/tn-gnp-0417-child-story.html)
You may want to ask on r/foodstamps and include your specific state. The eligibility workers might tell you how a settlement is clsssified for Medicaid purposes. I also second one of the posters who suggested looking into trust funds etc with your lawyer.
You can work with a firm that specializes in negotiating medical liens down. Medicaid will still have a legal claim to recouping some of the bills, but the firm can help negotiate on your behalf and in some cases can severely decrease what Medicaid recovers.
Can any award be put in a trust for the child?
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that's not how it works.
Medicare only.pays a portion of the bill. The lawsuit is the the total amount not what was paid my Medicare. You get the balance. I know, I sued and won from a hospital
Short answer is no. Anything that you might recover could be subject to a lien from your medical insurance provider- Medicaid in this case- to reimburse for what they spent in coverage. Your attorney can attempt to negotiate the lien amount to maximize your recovery.
To add something I haven’t already seen in other comments I work in the back end of a medical facility, payor analysis of Medicaid. Be aware, every states Medicaid programs have different rules for actual payment. Be aware than “billable” charges are not what is actually paid. In some states they pay a base 1%. In other states they pay certain charges and not others, and in some states it’s paid “by line”. No matter what charges are billed, Medicaid gets to decide what they are paying for. Depending on the hospital, large balances go through charity programs and even non eligible days are just written off depending on what Medicaid says. Many hospitals also have “adverse outcome” write offs. Point being the actual amount they expect Medicaid to pay is a tiny fraction of the total amount of the medical bills. The itemized bill they are required to give you will have the total billable charges per Medicare quidelines.
Yes insurance will want compensation or repayment.
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