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  • Writer's pictureMichael Kornhauser

Lien on Me (Part 2): How A Florida Medicaid Lien Can Impact Your Nursing Home or Assisted Living Facility Abuse and Neglect Case

The word LIEN on wooden blocks

In Part 1 of the Lien on Me blog series, we discussed the impact of Medicare Liens on your abuse and neglect case. You can read that blog here. In this blog, we discuss the impact of Medicaid liens.

Medicaid Liens

The Medicaid Third-Party Liability Act, Fla. Stat. § 409.910, et. seq., states that the Florida Agency for Health Care Administration (“the Agency”) has an “automatic lien for the full amount of medical assistance provided by Medicaid to or on behalf of the recipient for medical care furnished as a result of any covered injury or illness for which a third party is or may be liable…” See Fla. Stat. § 409.910(6)(c). The Agency carries out its lien enforcement functions through a contract with Health Management Systems, Inc. and its subcontractor, Conduent Payment Integrity Solutions. Because Medicaid is generally considered the payer of last resort, a Medicaid lien is usually considered a first lien, superior to all other liens. See Fla. Stat. § 409.910(1) and (6)(c)9.

What Does this Mean?

In essence, if Medicaid paid for some, or all, of the health care and treatment arising from the injury that is central to your abuse and/or neglect case, then a Plaintiff must repay Medicaid from the proceeds of any case recovery.

When Do We Notify Medicaid?

Oftentimes, we want to know the Medicaid lien as early as possible. Therefore, it’s good practice to request lien information during the nursing home or assisted living facility pre-suit process. Without knowing the lien, it’s difficult to engage in settlement discussions or assess the economics of your abuse and/or neglect case. Otherwise, a Plaintiff must provide notice of the filing of an abuse and/or neglect lawsuit to the Agency within thirty (30) days of filing the lawsuit. A Plaintiff must also provide notice to the Agency at least twenty-one (21) days prior to a voluntary dismissal, an event that might suggest a settlement. See Fla. Stat. § 409.910(11)(a). And, of course, a Plaintiff must notify the Agency in the event of a settlement.

How Much Does Medicaid Take? (The Recovery Formula)

In the event of a settlement or judgment in favor of a Plaintiff subject to a Medicaid lien, the recovery must be distributed according to statute. Florida Statute § 409.910(11)(f) states that the amount recovered shall be distributed as follows:

  1. After attorney’s fees and taxable costs are satisfied, one-half of the remaining recovery shall be paid to the Agency up to the total amount of the lien.

  2. The balance of the recovery shall be paid to the recipient.

For purposes of this calculation, attorneys’ fees are calculated as 25% of the total recovery. Further, “taxable costs” is a term of art that refers to those costs that are defined by Guidelines contained in the Florida Rules of Civil Procedure, rather than all costs incurred in the case.

If you or your loved one suffered at the hands of a nursing home or assisted living facility and some or all of resulting care and treatment was covered by Medicaid, we can help you navigate the intricacies of your case.


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