Montana Sens. Max Baucus and Jon Tester are working to get a full waiver of Medicare liens that have been placed on pending settlements for Libby asbestos victims.

The senators sent a letter on Oct. 2 to the Centers for Medicare and Medicaid Services, asking the agency to bypass the red tape so Libby residents sickened by asbestos exposure from the defunct W.R. Grace & Co. vermiculite mine can finally get compensated for their asbestos disease.

“Those harmed by the Libby asbestos contamination have already been subject to liens on the small settlement reached by the state of Montana,” Baucus and Tester stated in the letter to Marilyn Tavenner, acting administrator for the Centers for Medicare & Medicaid Services. “These individuals are seeking a waiver so that new settlements can be distributed without the expense and delay of Medicare lien processing.”

The senators were referring to a $43 million settlement from the state for more than 1,100 people with asbestos disease. In that deal any Medicare liens owed by victims were subtracted from settlement payments, and attorneys got $16 million in legal fees.

Under current law, Medicare, through a Medicare Secondary Payer system, has the right to recover the cost of medical treatment it paid for due to the negligence of another party.

In the case of Libby victims, many people poisoned by the toxic asbestos dust from the mine were treated under Medicare, the senators noted. So by law, Medicare is entitled to a portion of the Libby settlements to pay back those expenses.

“But, the process to determine how much Medicare is owed has [dragged] on for more than one year, preventing the settlements from being finalized and keeping victims from the compensation they deserve,” the senators stated.

Working with attorneys for the Libby claimants, the senators found the federal agency can waive its right to the settlements if doing so is in the best interest of Medicare. Baucus and Tester maintain the Libby case meets that requirement because some of the settlements have set up funds to pay for Libby asbestos victims’ past and future health care.

Allan McGarvey, an attorney with the McGarvey, Heberling, Sullivan & McGarvey law firm in Kalispell, met with Deborah Taylor, chief financial officer for the Centers for Medicare & Medicaid Services on Sept. 5 to talk about the Medicare waiver proposal. The Kalispell firm has had a lead role in negotiating settlements on behalf of the Libby claimants.

McGarvey said if the center approves the waiver, it’s a win for both Medicare and the claimants.

It’s an unprecedented situation, and the senators have asked the federal agency to grant the waiver commensurate with the savings to Medicare that the claimants have secured. That’s an estimated $1.5 million to $2 million, McGarvey said.

“This is a type of result that’s good for Medicare, and is a policy matter I think Medicare should be encouraging. It’s a result that saves Medicare money,” McGarvey said.

Features editor Lynnette Hintze may be reached at 758-4421 or by email at [email protected].