payer. Because these medical expenses
have already been paid by Medicare, it
necessarily involves a current Medicare
beneficiary.
Upon notifying Medicare, a Rights and
Responsibilities letter is issued. Within
65 days, the initial Conditional Payment
Letter is sent to anyone attached to the
claim. During these 65 days, the Benefits
Coordination & Recovery Center (BCRC),
which was previously the Medicare
Secondary Payer Recovery Contractor
(MSPRC), retrieves all available medical
claims connected to the accident. The
letter reflects the current lien amount,
including dates of services, providers,
and CPT codes. In some cases, medical
providers may have up to 27 months to
submit a bill, so conditional payments
could trickle in even after settlement.
Several options are available to the
Medicare beneficiary (or others with
valid Consent to Release or Proof of
Representation) for retrieving up-to-date
conditional payment amounts, including
the website MyMedicare.gov; Self Service
Information Feature (866-677-7220); and
the Medicare Secondary Payer Recovery
Portal. The web portal allows uploading
documents, requesting updates, disputing
items based on relatedness, and submitting
settlement information.
Advantage Plans
made under Medicare Part C by a
Medicare Advantage Plan. The law is
unsettled, but the Third Circuit upheld a
Medicare Advantage Plan's private cause
of action to sue for double damages.
on the Medicare Conditional Payment
Letter. The beneficiary's Medicare coverage
is a moving target, subject to change during
open enrollment periods.
to CMS for approval. Unlike workers'
compensation claims, there is currently no
formal procedure for voluntary submission
of liability settlements for review. Without
the benefit of a formal guideline for CMS
consideration of the following:
an MSA consultant regarding the
need for an MSA allocation. If an
MSA is appropriate, then establish
an MSA account with proper funding
and administration (either by self or
professionally). In some situations,
the circumstances may not warrant
any allocation of funds, in which case
a zero allocation may be appropriate.
The underlying consideration is the
defendant's responsibility to Medicare as
a primary payer under the terms of the
settlement and unique circumstances
of the case. Again, with no formal
submission allowed, many settling
parties are relying upon the MSA
proposal as the documentation of their
consideration of Medicare's interests.
jurisdictions, courts have been willing
to consider whether the parties have
properly considered Medicare's interests
in approving a settlement. Sometimes
the court may be willing to go so far
as to determine the proper amount to
be allocated towards a liability MSA.
make a finding absent Medicare's direct
involvement, which typically requires a
voluntary appearance.
office. Some CMS regional offices will
routinely, albeit informally, review
liability MSAs, but only on a case-
by-case basis. It is believed that most
regional offices now have informal,
internal guidelines for reviewing
liability settlements. If the amount of the
settlement is substantial, CMS will likely
take notice.
exclusively for liability settlements.
Settlements). Effective September 6,
2011, if an individual has received a
settlement of $300 or less, Medicare
will not recover conditional payments
if the settlement is related to a physical
trauma based incident (not ingestion,
payments will be made, and Medicare
has not already issued a recovery
demand letter.
According to the September 30, 2011,
CMS memorandum (Benson memo), if
a treating physician certifies no future
medical care is necessary related to the
liability claim, then CMS will consider
its interests protected with regard to
future medicals.
Payments. Effective November 7, 2011,
in liability settlements of $5,000 or less,
a beneficiary who elects this option may
resolve Medicare's recovery claim by
paying 25 percent of the total settlement
if the settlement is for a physical trauma
based injury, the option is timely
elected, Medicare has not already
issued a recovery demand letter, and
no additional payments are expected.
Once elected, there is no right to appeal
the fixed payment amount or request a
waiver of recovery.
horizon. CMS published an Advance
Notice of Proposed Rulemaking (ANPRM)
on June 15, 2013, requesting comments
on various options under consideration for
liability settlements, including a voluntary
submission process. The comment
period has ended, but it remains unclear
whether CMS may now issue a Notice
of Proposed Rule Making (NPRM) or an
Interim Final Rule. Additionally, once
fully implemented, the Strengthening
Medicare and Repaying Taxpayers
(SMART) Act, will give parties important
tools, including the ability to determine
the exact conditional payment lien before a
settlement is submitted.
2 See ROY A. FRANCO & JEFFREY J. SIGNOR,
LIABILITY CASE 80 (2d ed. 2012).
4 See 42 U.S.C. 1395y(b)(2)(B)(iv).
5 See In re: Avandia Mktg., 685 F.3d 353 (3d Cir. 2012), cert.
No. 12-690, 569 U.S. ___ (Apr. 15, 2013)(allowing private
cause of action under 42 U.S.C. § 1395y(b)(3)(A)).