Implications of Medicare Liens
on Personal Injury Recoveries (Continued from page 11)
effective until full payment of the com- promised amount has been received by Medicare.43 Medicare may waive (in whole or in
part) its claim if doing so would be in the best interest of the program.44 is known as a hardship waiver.45
This is what Under
Medicare’s internal regulations, a hardship waiver may be granted for all or part of its claim when the beneficiary satisfies the following requirements: (a) the claimant is without fault; (b)recovery would either: (i) defeat the purposes of the old age dependants, survivors and disability insurance benefits or hospital supplementary medical insurance benefits; or
(ii) be against equity and good con- science.46
Recovery defeats the purpose of the old age dependants, survivors and disability insurance benefits or hospital supplemen- tary medical insurance benefits when it would impose such a hardship as to de- prive a person of income required for ordinary and necessary living expenses.47 Ordinary and necessary expenses include: (a) fixed living expenses such as food and clothing, rent, mortgage pay- ments, utilities, maintenance, insurance, taxes, installment pay- ments, etc.;
(b)medical, hospitalization, and other similar expenses;
(c) expenses for the support of others for whom the individual is legally responsible; and
(d)other miscellaneous expenses which may reasonably be considered as part of the individual’s standard of living.48
In determining whether a personal acts
fault, Medicare considers: (a) the individual’s age and intelligence; (b)any mental, physical, educational, or linguistic limitations;
(c) whether the individual made a statement he or she knew or should have known was incorrect; and
4342 C.F.R. 401.615(a). 4442 U.S.C. 1395y(b)(2)(B)(IV).
45Medicare Intermediary Manual, § 3418.11. 4642 U.S.C. 1395gg(c); 20 C.F.R. 404.506. 4720 C.F.R. 404.508(a). 4820 C.F.R. 404.508(a).
Summer 2000 Trial Reporter 13
(d)whether the individual failed to fur- nish information he or she knew or should have known was material.49 A claimant can appeal an adverse decision on waiver or compromise of the Medi- care claim. A request for reconsideration of Part A health insurance benefits must be made within 60 days of the receipt of the initial determination. Appeal of a Part B benefits determination must be made within six months. As a practical matter, appeal of both Parts A and B should be made within 60 days.50
4920 C.F.R. 404.507. 50
Medical Intermediary Manual § 3418.30; Kaufman at 314.
In summary, Medicare has a potent
right of recovery that requires the atten- tion of attorneys representing Medicare recipients with personal injury claims. However, with an understanding of the statutes and regulations applicable to Medicare’s right of recovery, attorneys can minimize the impact of Medicare’s recov- ery rights. In any case in which Medicare may have a right to recovery, the attorney should request a statement of claim. The initial letter to Medicare presents an op- portunity to lay the ground work for a later request for compromise or waiver, as well as to proactively suggest the exclu- sion of specific payments for services unrelated to the legal case.
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