Avmed HMO asserted a lien, or right of reimbursement, against a portion our client’s uninsured motorists settlement. Although the amount of the alleged Lien – $9,749.51 – is relatively small, it is my position that HMO’s never have any lien on UM benefits. When Avmed refused to voluntarily withdraw its claim of lien, I filed a declaratory judgment action seeking a declaration that Avmed had no lien.
Although HMO’s often assert liens against UM benefits, pursuant to our Florida Statutes, an HMO never has a lien against UM benefits. This is true regardless of what the HMO contract says. Even if the HMO is governed by ERISA, the "savings clause" of the ERISA statute provides that ERISA does not preempt the "business of insurance."
Also, even if Avmed HMO had a lien on UM benefits, it would only be entitled to recover a fraction of the amount it was seeking because our client was not "made whole" by the policy limits UM settlement. Under the "make whole" doctrine a lienholder is not entitled to any reimbursement if the insured was not made whole by the recovery. The make whole doctrine has been modified in Florida under some circumstances by Section 768.76. However, even if the entire lien is not eliminated, what the health plan can recover is significantly limited when the injured party is not made whole. Unfortunately, often times, health insurers, PPO’s and HMO’s ignore the law and assert liens that do not exist, or demand payments that are exorbitant under the circumstances. Equally unfortunate, is the fact that many plaintiffs attorneys pay liens that do not exist, or pay significantly more than what is due and owing.
In this case, cross motions for summary judgment have been filed, and a hearing on the issue is scheduled. If we are successful, Avmed HMO will be obligated to pay all of our fees and costs incurred in prosecuting this action.
Repeatedly, I have seen cases where good attorneys pay back liens that do not exist, or they pay back way too much. Paying back liens that don’t exist, or paying back too much is a disservice to our clients, and can be considered malpractice. The law on health insurance, ERISA, PPO, and HMO liens is complicated and requires experience to unravel.
Many times, personal injury attorneys will recommend that their clients hire The Nation Law Firm to negotiate and litigate liens on behalf of the personal injury victims. This removes any potential liability from the personal injury attorney, and provides a much needed service to their clients.
I am currently in litigation in numerous such declaratory judgment actions at this time. For more information on lien resolution, click the word "Liens" in the right-hand column.