In reviewing this article, the statutes and the cases, ask yourself this question. If Medicare was really entitled to be re- imbursed out of any tort proceeds, why didn’t Congress simply say: If you are injured by the negligent conduct of another, and Medicare pays your medical expenses, Medi- care has the right to be reimbursed out of any settlement or judgment that you collect. Further, Medicare is subrogated to your cause of ac- tion against the person or entity who caused you harm to the ex- tent that Medicare paid your medical expenses incurred as a re- sult of the other person’s negligence?3
The Arguments in a Nutshell Attorneys for plaintiffs should argue
that Medicare is only entitled to reim- bursement when it pays as a secondary payer. In order to pay as a secondary payer, there must be a primary payer. A primary payer is an insurance company that can be expected to pay for the medi- cal bills promptly. Under the regulations applicable to Medicare, promptly means within 120 days of the medical service.4 Medicare is generally prohibited from paying for the medical bills if there is a primary payer. Despite the general pro- hibition, Medicare is allowed to pay when there is a primary payer and to recover those payments later. If Medicare does pay when there is a primary payer, Medicare’s payment is conditional. Since tort pay- ments are almost never paid promptly Medicare is almost never paying as a sec- ondary payer. The Government misreads the statute. The Government will argue that Medi- care is prohibited from paying when
3
It is most interesting that in Thompson v. Goetzmann, which is the case that the Gov- ernment recently lost in the Fifth Circuit, the Government’s first argument in the ap- pellate court was, “The current text of the MSP (Medicare Secondary Payment) provi- sions is complex and is most easily under- stood in the context of its legislative devel- opment.” In the author’s view, the Govern- ment needs to make this argument because the text of the current law clearly does not support the Government’s position. (Thomp- son v. Goetzmann, et. al., No. 02-10198, on appeal to the United States Court of Appeals for the Fifth Circuit, Opening brief of the United States, page 15.) 4 42 C.F.R. 411.50.
Spring 2003 Trial Reporter 9
someone else will pay promptly. Medi- care simply does not pay in this situation. When payment cannot be expected to be made promptly, Medicare will pay, but this payment is conditioned upon repay- ment. The Government argues that any time there is a third party tort reimburse- ment from an insurance carrier or a defendant who is self insured, Medicare has paid as the secondary payer and is entitled to reimbursement
The History of Medicare Medicare is a federally funded and ad-
ministered program created by Title XVIII of the Social Security Act, 42 U.S.C. § 1395, et. seq. Medicare was created in 1965 to provide “federally funded health insurance for the aged, the disabled, and people suffering from end-stage renal dis- ease.” Health Ins. Ass’n of America v. Shalala, 306 U.S. App. D.C. 104, 23 F.3d 412, 414 (
D.C.Cir 1994). Except for workers’ compensation
plans, Medicare was made the “primary payer” for the healthcare claims of federal beneficiaries with the beneficiaries’ other health insurance plans filling in some or all of the coverage gaps. Social Security Amendments of 1965, Pub. L. No 89-97, §1862(b), 79 Stat.365.
Medicare in the United States Code Title XVIII of the Social Security Act, 42 U.S.C. § 1395, et seq., establishes the Health Insurance for the Aged and Dis- abled Program, commonly known as Medicare. The Medicare Program is di- vided into two parts: Part A and Part B. Part A provides insurance for in-patient institutional services, home health ser- vices, and other post hospital services. 42 U.S.C. §§ 1395C-1395i. Part B provides insurance for physician, outpatient, hos- pital, and various other services. 42 U.S.C. §§ 1395j-1395w.
Health Care Finance Administration (HCFA)
The Medicare program is administered
by the Secretary of Health and Human Services. Health Care Finance Adminis- tration is an agency of the United States Department of Health and Human Ser- vices. HCFA contracts with private contractors to process and pay Medicare claims. The contractors are called “fiscal intermediaries” or “carriers.” The Secretary of Health and Human
Services is delegated the responsibility for promulgating regulations under the Medi-
(Continued on page 10)
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64