Malpractice? (Continued from page 9)
care Secondary Payer Act (MSPA) to HCFA. 42 U.S.C. § 1395hh9(a)(1); 42 C.F.R. § 411.24(b).
Code of Federal Regulations The Code of Federal Regulations (CFR) is a publication established by an Act of Congress (44 U.S.C § 1510). It represents a compilation of all the regula- tions issued by Federal administrative agencies that have “general applicability and legal effect.” Federal statutes furnish the authority and limits for regulations that appear in the CFR. This means that the regulations on a subject should be read together with any pertinent portions of the U.S. Code. It also means that courts will, on occasion, hold that regulations that appear in the Code of Federal Regu- lations are invalid because they conflict with a Federal statute. Properly promulgated, substantive
agency regulations have the “force and effect of law.” Chrysler Corp. v. Brown, 441 U.S. 281, 295 (1979). With Medicare, the Secretary of
Health, Education, and Welfare shall make and publish such rules and regula-
tions, not inconsistent with this chapter, as may be necessary to the efficient ad- ministration of the functions with which he is charged under the chapter. U.S.C. § 1302.
42
The Typical Claim For Reimbursement The Government will argue that all
Medicare payments are “conditional” and subject to reimbursement. This is what the typical letter from HCFA says: Medicare has been advised that you have been retained to represent the above referenced beneficiary in mat- ters arising out of an accident, incident or injury. Medicare has made a condi- tional payment of $X.xx. The purpose of this letter is to advise you of the applicability of the Medicare Second- ary Payer Program in this circumstance and advise that it is in your and your client’s best interest to keep Medicare’s reimbursement and the obligation to satisfy Medicare’s claim in mind when negotiating and accepting a final dol- lar amount in settlement from the third party. 42 CFR 411.24(g). Medicare’s claim must be paid up front out of settlement proceeds before any distribution occurs. The Medicare Sec- ondary payer provisions of the statute,
Experienced.
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AND THEIR CLIENTS Credible.
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Responsive.
¥ FORENSIC ACCOUNTING ¥ LAW FIRM MANAGEMENT
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42 U.S.C. 1395y(b)(2), preclude Medicare from paying for a beneficiary’s medical expenses when payment “has been made or can rea- sonably be expected to be made promptly...under an automobile or li- ability insurance policy or plan (including a self-funded plan) or un- der no-fault insurance.” However, Medicare will pay for a beneficiary’s covered medical expenses when the third party payer does not pay promptly, conditioned on reimburse- ment to Medicare from proceeds received from a third party liability settlement, award, judgment or recov- ery. In those instances where Medicare has actually sued a lawyer who did not reim- burse Medicare, this is what the typical lawsuit brought by Secretary of the United States Department of Health and Human Resources under the Medicare Secondary Payer Act claims:
1. Your client was injured. 2. Medicare paid some or all of the medical bills.
3. When Medicare paid the bills it was making a “conditional payment.”
4. The United States has a right to re- cover the “conditional payment” when another entity was respon- sible for making the payment.
5. The “other entity” or “third party payer” is required to reimburse Medicare even if it has already paid a beneficiary or other party and re- gardless of whether or not it was aware of Medicare’s conditional payment at the time it paid the ben- eficiary or other party.
6. The “other entity” can be “an au- tomobile or liability insurance policy or plan (including a self-in- sured plan) or under no-fault insurance.” 42 U.S.C. §1395y(b)(2)(A)(ii); 42 C.F.R. §§411.24(e); 422.50(b).
7. The Government will also claim a right of reimbursement from any entity who has received payment from the entity responsible for mak- ing payment. That will include your client and you.
8. Reimbursement must be made to Medicare within 60 days of receipt of payment. 42 U.S.C. §1395y(b)(2)(B); 42 C.F.R. §411.24(g)&(h).
9. That it made a conditional pay- ment and there has now been a
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Trial Reporter (Continued on page 12) Spring 2003
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