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October 19, 2015

Asbestos Trusts and Medicare Liens: Three Options for Potential Relief

by: Jeanette M. Gilbert

Back in 2012, I wrote a blog about reimbursing Medicare after you’ve received a settlement from an asbestos 524(g) trust. If your exposure to asbestos ended prior to Dec. 5, 1980, Medicare reimbursement is not required. However, many people cannot remember the exact dates of their possible asbestos exposure or when their exposure could have ended. As you can imagine, many workers just focus on their retirement date.

Medicare expenses can be considerable depending on the asbestos-related disease you’re diagnosed with. Medical science has made many advances in treatments, allowing individuals with asbestos-related diseases to live longer, more productive lives. Some treatments for diseases such as lung cancer, however, may take place over the course of months or years, oftentimes greatly increasing the cost. Fortunately, there are some avenues of relief for those who may have to report their asbestos settlement(s) and are required to reimburse Medicare. 

Option 1: Appeal

An appeal can be made to challenge some or all of the charges which Medicare is imposing. An appeal is filed when there is a basis that the final demand made by Medicare contained errors; usually that unrelated claims were included on that final demand made by Medicare. There are time limits when an appeal must be made: 120 days from the date of the final demand letter for a redetermination of the charges. In addition, Medicare will review the matter and charges, which in some cases can actually increase the final demand, since Medicare may determine that charges were left off the original and should be added back in.

Additional documentation may be necessary, such as:

  • medical reports showing the asbestos-related disease
  • occupational history
  • affidavits as to exposure history

If your appeal for redetermination of the Medicare demand is turned down, you may ask for reconsideration of that decision through an Administrative Law Judge hearing. These types of appeals must be filed within 60 days of your first appeal decision.

Appeals are not a guarantee of success. If there is more than one diagnosis of cancer, whether asbestos-related or not, and if determination of primary cancers are difficult to pinpoint, the appeals process can be complicated.  Maintaining Medicare paperwork can be helpful in unraveling what you were specifically being treated for and whether asbestos exposure played any part in your illness.

Option 2: Post-Settlement Compromise

Another form of relief is a post-settlement compromise. Most often, it is helpful to wait until all settlements have been received before pursuing a post-settlement compromise.  However, if your settlements are spread out over years, waiting for all settlements to be resolved and paid is not the ideal situation.  If you’re unable to retain an equitable portion of the settlement amount, a post-settlement compromise can often offer the best relief. If a compromise is warranted, Medicare will review the settlements and the amount to be repaid.  A compromise from Medicare is final. Like an appeal, additional documentation such as medical records and occupational history is required. If a post-settlement compromise was negotiated and accepted by Medicare, and additional funds are received which must be reported, additional monies may be due to Medicare.

Option 3: Waiver

A waiver is where Medicare partially or fully waives its lien amount. In order to be successful under the waiver option, extreme financial hardship must be proven. The waiver questionnaire (Form SSA-632-BK) is very detailed, and requires all financial information as to income, expenses and assets along with any other extenuating circumstances. In general, living expenses must exceed or equal income. This is a very difficult threshold to meet. 

Having some options for relief from Medicare repayments regarding asbestos settlements is helpful.  While the thresholds to meet these options are high, there can be relief for those injured parties who truly need it. 

Read Part I of this blog here.