This is the third in a series of articles dealing with lien resolution in personal injury cases.
In New Jersey, there is a lien against real and personal property of a person who has been assisted by or received support from any municipality or county. This is true whether a person has been in a county facility or at home.1
In New Jersey. a person with a mental illness who is over age 18 and is being treated in a state psychiatric hospital shall be liable for the full cost of his treatment. maintenance. and all necessary related expenses.2 Although this statute does include a repayment obligation. it does not appear to impose a lien. particularly with respect to personal injury claims.
Tbe New Jersey Traumatic Brain Injury Fund is the payer of last resort for costs of post-acute care. services. and financial assistance provided to survivors of traumatic brain injury. particularly with respect to rehabilitative and long-term care needs not covered by private insurance or public benefits programs. 3 The fund provides up Lo $15,000 a year in benefits, not to exceed a total expenditure of $100,000 per eligible person. The fund has a first-priority claim to any monies received by the person with traumatic brain injury as the result of a settlement or other payment made in connection with the traumatic brain injury.4
As its name suggests, the Catastrophic Illness in Children Relief Fund is a New Jersey program that provides assistance to children and their families whose medical expenses extend beyond tbe families’ available resources. 5 In the case of an illness or condition for which the family. after receiving fund assistance. recovers damages for the child’s medical expenses pursuant to a settlement or judgment in a legal action, the family is required to reimburse the fund for the amount of assistance received. or for the portion of assistance covered by the amount of the damages. subject to a credit for the expenses of obtaining the recovery.6 The Fund administrators have the authority to negotiate settlement of its reimbursement claims.; Victims of Crime Compensation In New Jersey. certain victims of crime are entitled to compensation under the Criminal Injuries Compensation Act of 19 71. 8 The Act covers individuals injured or killed by any act or omission of any other person, which is within the description of offenses listed within the Act.9 The state has a right of subrogation against the person responsible for personal injury or death. and a lien after entry of judgment.10 State Worlrnrs’ Compensation Claims \•\/hen there is a state Workers’ Compensation (WC) claim and also a third party liability case. and the third-party liability case settles, there is a WC lien against the third-party liability proceeds.11 Frequently. the WC lien is negotiable. because the WC carrier may be motivated to get the plaintiff off its books.
If the amount recovered from the third party is greater than the WC lien, no attorneys’ fees or costs are permitted. If the sum recovered against the third party is less than the WC lien, there is a pro rata reduction for attorneys· fees and costs.12 Expenses shall not exceed $ 750 and attorneys’ fees shall not exceed 33-1/ 3 %. 13
Federal Employee Compensation Act The Federal Employee Compensation Act (FECA) is the federal equivalent of the state Workers’ Compensation law. 14 The United States has a statutory lien for recovery against the third party liability case.15 The lien attaches to the entire recovery.
Generally, every hospital, nursing home, licensed physician or dentist may assert a lien for services rendered by way of treatment, care, or maintenance to any person who has sustained personal injuries in an accident as a result of negligence or alleged negligence of any other person.16 The lien attaches to the proceeds of any settlement, award. or judgment an injured person may obtain from a third party as a result of the injuries for which services were provided.17 Hospital liens may be difficult to negotiate: however, such liens are subject to strict filing and notice requirements 18 and failure to comply with the statute is fatal to the lien claim.
New Jersey imposes liens for child support against any proceeds recovered from a personal injury settlement.19 The lien shall have priority over all other levies and garnishments against the net proceeds of any settlement, judgment, or award, unless otherwise provided by the Superior Court, Chancery Division, Family Part. The only exception is unpaid income taxes.
The Division of Developmental Disabilities asserts liens for many of its programs. Before settling a case, it is important to check with DOD if plaintiff has been receiving those services.
1 N.J.S.A. 4:4-91.
2 N.J.S.A. 30:4-60(c)(1).
3 N.J.S.A. 30:6F-1 et seq.
4 N.J.S.A. 30:6F-6(b).
5 N.J.S.A. 26:2-148 et seq.
6 N.J.S.A. 26:2-154(b).
7 N.J.S.A. 26:2-154.1.
8 N.J.S.A. 52:4B-1.
9 N.J.S.A. 52:4B-10.
10 N.J.S.A. 52:4B-20.
11 N.J.S.A. 34:15-40.
12 N.J.S.A. 34:15-40(b) and (c)
13 N.J.S.A. 34:15-40(e)
14 5 U.S.C. §8131 and 8132:20 C.F.R. § 10.705-719.
15 5 U.S.C. §8132.
16 N.J.S.A. 2A:44-36.
17 N.J.S.A. 2A:44-37.
18 N.J.S.A. 2A:44-41.
17 N.J.S.A. 2A:17-56.23(b).
The post Lien Resolution In Personal Injury Cases first appeared on SEONewsWire.net.]]>by Thomas D. Begley, Jr., CELA
In New Jersey, certain victims of crime are entitled to compensation under the Criminal Injuries Compensation Act of 1971.[1] The Act covers individuals injured or killed by any act or omission of any other person, which is within the description of offenses listed within the Act.[2] The state has a right of subrogation against the person responsible for personal injury or death, and a lien after entry of judgment.[3]
When there is a state Workers’ Compensation (WC) claim and also a third party liability case, and the third-party liability case settles, there is a WC lien against the third-party liability proceeds.[4] Frequently, the WC lien is negotiable, because the WC carrier may be motivated to get the plaintiff off its books.
If the amount recovered from the third party is greater than the WC lien, no attorneys’ fees or costs are permitted. If the sum recovered against the third party is less than the WC lien, there is a pro rata reduction for attorneys’ fees and costs.[5] Expenses shall not exceed $750 and attorneys’ fees shall not exceed 33⅓%.[6]
The Federal Employee Compensation Act (FECA) is the federal equivalent of the state Workers’ Compensation law.[7] The United States has a statutory lien for recovery against the third party liability case.[8] The lien attaches to the entire recovery.
[1] N.J.S.A. 52:4B-1.
[2] N.J.S.A. 52:4B-10.
[3] N.J.S.A. 52:4B-20.
[4] N.J.S.A. 34:15-40.
[5] N.J.S.A. 34:15-40(b) and (c).
[6] N.J.S.A. 34:15-40(e).
[7] 5 U.S.C. §§ 8131 and 8132; 20 C.F.R. § 10.705-719.
[8] 5 U.S.C. § 8132.
The post RESOLVING VICTIMS OF CRIME COMPENSATION, STATE WORKERS’ COMPENSATION CLAIMS, AND FEDERAL EMPLOYEE COMPENSATION ACT LIENS IN PERSONAL INJURY CASES first appeared on SEONewsWire.net.]]>by Thomas D. Begley, Jr., CELA
Countable Asset for SSI and Medicaid
A question arises as to whether assets held in an MSA are countable for SSI and Medicaid purposes. This has been addressed by CMS in the WC context, but the same line of reasoning should apply to third party liability cases. CMS has stated that:[1]
Medicare Set-Aside Arrangements are not subject to any special treatment under Medicaid resource rules. These funds should be evaluated to determine whether they meet the legal definition of a resource for Supplement Security Income (SSI) and, therefore, Medicaid purposes, i.e., ‘cash or other assets that an individual owns and could convert to cash to be used for his or her support and maintenance.’ The funds must be in interest-bearing accounts. The funds may meet the SSI/Medicaid resource definitions.
There may be cases in which funds in a Medicare Set-Aside Arrangement are placed into trusts, possibly trusts that would satisfy the definition of “special needs trusts” under Section 1917 of the Social Security Act. In those cases, the funds might not be a countable resource, but that result would be solely on the basis of Medicaid, not Medicare, rules.
If the MSA funds are wrapped into a special needs trust, they would be considered inaccessible for SSI-related Medicaid and Food Stamp purposes. It is always good practice to have a professional trustee to administer a Self-Settled Special Needs Trust, because of the complexity of the issues involved. Most professional trustees will then retain the services of a professional custodian, such as MediVest Advisors, to administer the MSA subaccount. If the size of the MSA is significant, the cost can be sharply reduced by funding the MSA with a Structured Settlement. The average savings by utilizing a Structured Settlement, rather than a lump sum, is 46%.[2]
The Structured Settlement payment stream is paid directly to the special needs trust, and the trustee allocates the funds to the MSA subaccount.
[1] CMS Memorandum Questions and Answers, July 11, 2005, Q & A 13.
[2] Policy Clarifications—Food Stamp—Medicaid—SSI, PMS 13182340, PFS 13182540 (revised July 20, 2007).
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