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Medical Malpractice Case Note


Challenging the Medicare Secondary Payor Act and Its Various Regulations


Elliott Andalman & Michelle Amick


H recipients.1


aro v. Sebellius, 2009 WL 4497456 (D. Ariz 2009) presents the first significant direct challenge to the Center for Medicare and Medicaid Services


(CMS- Medicare) regulations derived from the Medicare Secondary Payer Act concerning the re-payment of medical bills by Medicare in either personal injury or workers compensation case.


Te lawsuit was filed by the Center for Medicare


Advocacy which is a national non-profit organization with offices in Washington, D.C. and Connecticut. Plaintiffs in Haro are a nationwide class of Medicare Plaintiff Haro, specifically, was a Medicare


beneficiary who was injured in an automobile collision and received medical treatment2 paid for.3


that Medicare conditionally Plaintiff received settlement from the person


responsible for the accident that resulted in her injuries.4 On January 12, 2009, Defendant's Medicare Secondary Payer Recovery Contractor (MSPRC) sent the typical


1 Id. at 1. 2 Id. 3 Id. 4 Id.


form letter to Plaintiff Haro demanding reimbursement for Medicare expenditures related to the accident.5


Plaintiff


Haro disputed the reimbursement charges from an ankle surgery which was not related to the accident.6


On January


21, 2009, Plaintiff Haro’s attorney, wrote MSPRC appealing the reimbursement calculation, and Plaintiff Haro sent a reimbursement check for $800.00.7


MSPRC failed to


recognize that Plaintiff Haro had sent them the $800.00 reimbursement check, and agreed to the reduction of the reimbursement claim in response to her appeal, and made a new reimbursement demand for $696.13.8


MSPRC charged


her $6.60 in interest for 30 days, which was for January 12, 2009, through February 12, 2009, for a total reimbursement of $702.73, which was due in full within 30 days of the March 3, 2009 determination letter.9 Plaintiffs sought relief through a declaratory judgment


that Defendant's collection procedures exceed the authority granted under the Medicare statute and violate the Due Process Clause of the United States Constitution by: (1) demanding payment of the MSP reimbursement claim before resolution of any appeal or waiver; and, (2) demanding attorneys withhold liability proceeds from their clients pending reimbursement to MSPRC for these claims prior to resolution of any appeal or waiver request.10 Plaintiffs alleged that the Defendants violate the due


process rights of a Medicare beneficiary by demanding immediate reimbursement, within 60 days, in advance of resolution of requests for a waiver of the reimbursement claim sought by Medicare, or other appeals.11


Plaintiffs assert that MSPRC reimbursement claims are frequently


5 Id. at 2. 6 Id. 7 Haro v. Sebellius, 2009 WL 4497456, 2 (D.Ariz. Nov. 30, 2009). 8 Id. 9 Id. 10 Id. at 4. 11 Id. at 1.


Trial Reporter / Summer 2010 49


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