If you’re involved in a legal matter concerning a personal injury, you will have to deal with Medicare secondary payer issues. Medicare pays for healthcare for millions of Americans each year and The Centers for Medicare & Medicaid Services (CMS) is actively engaged in recouping those sums when a beneficiary receives money for the same injury or treatment in a legal matter.

The Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) (42 U.S.C. 1395y(b)(7) & (8)), which went into effect on July 1, 2009, creates a duty to protect Medicare’s financial interests in all settlements or judgments involving a Medicare beneficiary and requires mandatory reporting of such settlements or judgments on the part of self insureds, liability insurers, no-fault insurance providers and workers’ compensation providers.
CMS has done a good job, according to those affected, with automating reporting and reimbursement with simple case, such as healthcare claims. It is not working so well with complex or mass tort claims. The system was set up to fit certain types of claims and the more complicated claims involve additional factors not contemplated in the existing system, such as latency periods, multiple exposures and multiple parties, whether its claimants, defendants or insurers … and in some case all of the above.

According to experts who spoke with HB, the first thing to do right off the bat in a personal injury case is query CMS to determine if the claimant at issue is a Medicare beneficiary – in 2009 there were 46 million covered under Medicare so it’s safe to say there’s a chance you may be dealing with one. If you get a negative response, you’re in the clear.

However, according to Chris Crosswhite of Duane Morris in Washington, D.C., who provided guidance with regard to asbestos claims at HB’s Medicare Secondary Payer Mandatory Reporting Requirements teleconference held Nov. 18, 2009, several elements are needed to do a query with CMS and all must be perfectly correct or a negative will come back. Among the sources of information he advises to check, he suggests making efforts to actually see a Social Security or Medicare card to obtain accurate information.

Plaintiff attorney Marty Morris of Baron & Budd in Dallas explained at the teleconference that while in theory, the Medicare secondary payer law applies to defendants and responsible reporting entities, in reality plaintiff counsel will see an impact in their practice in terms of settlement processes and investigation efforts with Medicare.

Among the confusions for everyone is a difference in definitions used. For example, the Date of Incident, according to CMS, is the first date of exposure whereas the legal world defines it as the last day of exposure.

These are the things plaintiff and defense counsel need to know.  Visit the first edition of HB’s Medicare Secondary Payer Newsletter to find out more about the kind of information that must be obtained regarding a Medicare beneficiary and where and when to get it.

Because this issue affects every settlement, the consensus is that there must be coordination between plaintiff and defense counsel about the amount of the Medicare reimbursement amount.  Read more in the newsletter about how to handle an injury claim involving a Medicare beneficiary over the course of a case and avoid $1,000/day penalties and possible double damages down the road.