October 13, 2006

Medicaid Liens

MEDICAID LIENS - Fergeson v. IHB Realty Inc. In this case, plaintiff moved to modify a prior court order awarding $40,000 to New York City in full satisfaction of its asserted medicaid lien arguing the settlement should be set aside based on the recent ruling in Ark. Dept. of Health and Human Services, et al. v. Ahlborn asserting the holding made it clear the federal medicaid law and its anti-lien provision prohibited the recovery of medicaid liens from torts proceeds exceeding the medical expenses portion. The court stated the facts of this case did not run afoul of Ahlborn, noting all concerned parties were aware the matter was sent to arbitration with the court reserving the power to set liens. It noted it was clear liens would be deducted from the settlement regardless of any specific designation. The court directed counsel to negotiate a lesser compromise figure with the Department of Social Services which it agreed to set as the medicaid lien portion of the award in its order, and the amount of the reduced lien became the designated medical costs allocation in the prior settlement order, and pursuant to Ahlborn, the only amount recoverable by DSS. Thus, plaintiff's motion was denied.

October 11, 2006

DWI in NY State

Appellate Court decision regarding DWI in New York State - A driver who allegedly inhaled from a can of Dust-Off before veering into oncoming traffic and killing one person cannot face driving while intoxicated and vehicular manslaughter charges under the state's drunken-driving laws, an appeals court in Brooklyn has ruled. A divided panel of the Appellate Division, Second Department, held that the laws in question, Vehicle and Traffic Law §1192(3) and Penal Law §125.12, only apply to impairment caused by alcohol. The majority found that the state Legislature had clearly recognized that §1192(3) did not apply to driving under the influence of drugs, which is why it passed §1192(4). "For us to hold otherwise would render 1192(4) superflous[sic], a result to be avoided in statutory construction," the majority wrote in People v. Litto, 2005-02978. www.foleygriffin.com