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Brooklyn Bar Association examines the blueprint for addressing liens at CLE

September 14, 2016 By Rob Abruzzese Brooklyn Daily Eagle
Kate Langlois, Paul R. Loudenslager and Frank Kilcoyne. Eagle photo by Rob Abruzzese
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The Brooklyn Bar Association (BBA) kicked off a new season of Continuing Legal Education (CLE) courses with a seminar titled “The Blueprint for Addressing Liens” in Brooklyn Heights on Tuesday night.

The event was co-sponsored by the New York State Academy of Trial Lawyers and featured attorney Paul R. Loudenslager, of Precision Resolution out of Buffalo, and Frank Kilcoyne, a settlement consultant at JMW Settlements Inc. The pair lectured for two hours on Medicare, Medicaid, the Employee Retirement Income Security Act and other lien issues that cause holdups and delays of settlement funds.

“What we do on a daily basis is help plaintiffs’ attorneys deal with these liens that are stalling the settlement of their cases,” Loudenslager said. “The thing about liens is that every single type of health care coverage out there that is possible for your client. Every one of those different types of health coverages has a totally different area of the law that covers recovery rights. And every single one of those areas [is] always changing, so this whole area can get difficult pretty quickly.”

Loudenslager started off by discussing how to deal with Medicare and Medicare Set Asides (MSA), a financial agreement that allocates a portion of workers’ compensation settlements to pay for future medical expenses related to injuries. According to Loudenslager, the most important thing when it comes to dealing with Medicare is to start the process as soon as possible.

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“As soon as your client walks in the door, as soon as they tell you that they are on Medicare and Medicare has been paying the bills, you can start that process with the BCRC [Benefits Coordination & Recovery Center],” Loudenslager said.

He also recommended calling the BCRC to open a file rather than sending paperwork, as he said the BCRC is notorious for shredding any paperwork that contains even minor errors. He stressed that follow-ups with the BCRC are necessary and that his firm conducts regular follow-ups every 90 days.

“You have to do everything possible to make sure that they are doing their job,” Loudenslager said. “The possibility of human error during this process is virtually limitless.”

Kilcoyne continued the lecture on MSAs and specifically dealt with MSA accounts, which, as he stated during the lecture, aren’t legally mandated, but can sometimes be necessary.

“There is no rule, no letter of law, no statute, no guideline anywhere that says you have to use an MSA account on a personal injury case,” Kilcoyne said. “You can do an MSA on every case — I have a client that does it. It adds another wrinkle, an extra expense. You can never do an MSA. There is no rule, no law. Or you can handle it on a case-by-case basis, and this is what I recommend my clients to do.”

Kilcoyne cautioned that attorneys should consider MSA accounts for larger settlement cases. He suggested that they might not be as necessary with smaller payouts, but said that all attorneys should be aware of the MSA account issues and that they should be prepared to deal with them eventually. He also said that attorneys should have a strategy for how they approach these situations and that they ought to document everything that they did involving the situation.


Book Now for eDiscovery CLE

The Brooklyn Bar Association has another CLE session tentatively scheduled for Sept. 21 at 6 p.m. titled “Taking the Fear Out of eDiscovery.” However, as few people have signed up for the lecture, the course is in danger of being cancelled. Anyone interested is encouraged to sign up immediately — call (718-624-0675, ext. 206) or visit the BBA’s website at

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