Asbestos trusts and Medicare liens:
Medicare wants its money back
Jeanette Gilbert

Millions of people have been affected by medical conditions due to asbestos exposure. While a financial award cannot relieve the loss of a loved one or reduce the pain and suffering experienced, it often helps with expenses due to treatment or loss of income.

Our firm works hard for clients to help them recover their losses from asbestos-related diseases. In doing so, we must take into account the government policy and statutory requirements regarding reimbursement to medical providers, including Medicare.

So we warn our clients that the financial award may not all be theirs for the keeping—Medicare may demand reimbursement.

Here’s an example; Mr. Jones was exposed to asbestos during his working life. He worked in his industry until his retirement at age 67 in 1986. He was later diagnosed with an asbestos-related disease and recently received an award of money based on his exposure. It may be hard to believe, but some or all of the money to which he is entitled through the settlement may have to be paid to Medicare to satisfy a lien for any costs related to his disease that Medicare paid.

Anyone more than 65 years old, or who had a deceased family member more than 65 years old, who filed an asbestos lawsuit or claim through asbestos trusts should be aware of this provision of the Medicare and SCHIP Extension Act (MMSEA) Section 111 reporting requirements and priority recovery rights.

Why does he have to reimburse Medicare? Medicare is a secondary payer, meaning that your doctor’s visit doesn’t cost the 20 dollars you are being charged for a co-payment. If you are more than 65-years-old, Medicare picks up part of the bill. Because Medicare is a secondary payer, the Center for Medicare and Medicaid Services (CMS) can assert recovery (payment) against settlements, judgments, payments or awards involving environmental hazards—including asbestos exposure. So, if any of Mr. Jones’ (in the example above) medical care was in any way attributed to his asbestos disease, Medicare wants to be repaid for its expenses.

Medicare will, however, limit recovery if the “Date of Incident” occurred before Dec. 5, 1980.

Yes, this is complicated. It boils down to this: If the person exposed to asbestos is more than 65-years-old, or died after the age of 65, and any exposure occurred after Dec. 5, 1980, Medicare has a right to be repaid for any medical expenses it paid relating to the illness.

But wait: recovery is not limited to people more than 65 years of age. If the person exposed to asbestos is younger than 65, but is/was on Social Security Disability or had permanent kidney failure (or received Medicare benefits for any reason), Medicare can require repayment.

And how is “exposure after Dec. 5, 1980” defined? The burden is on you or, in our example, Mr. Jones, to establish that the exposure ended before Dec. 5, 1980. All of the exposure. This is a difficult burden to meet, especially in light of the trouble many people have remembering exactly when and where exposure occurred. Trying to recall facts from 20, 30 or 40 years ago is difficult. Sure, most folks know when certain milestones occurred in their lives, like marriage, entry into military service or where you were when President John F. Kennedy was assassinated. But try to remember exact dates or circumstances; it can often be difficult to recall the the “who, what, where, and when.” If a family member who was exposed to asbestos is deceased, exact dates may be even more problematic.

Even if claims are only for administrative claims through Asbestos 524(g) Trusts, Medicare still has the right of reimbursement.

Medicare rules and regulations are complex and difficult to navigate. The Medicare website has lots of information, but it can be hard to interpret. Is this all doom and gloom? No. It is a great thing that our country has Medicare in place so those entitled to that benefit did not have to pay for health care costs when the services were rendered. But now, it’s time to pay the piper.

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Jeanette Gilbert

About Jeanette Gilbert

Jan advocates for the rights of those suffering from asbestos-related diseases through asbestos bankruptcy litigation and management of claims processing. She focuses on the analysis of complex bankruptcy documents and advises both clients and co-counsel on the claims facilities and asbestos personal injury trusts established by the bankruptcy courts for the benefit of asbestos victims. In addition to her occupational disease work, Jan uses her background in finance management and estate and trust administration to provide legal research for complex securities fraud and shareholder derivative cases. She serves on the Ethics Committee of the South Carolina Bar and is a former adjunct professor at Long Island University. View Jan's full bio.

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