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by Bradley J. Frigon, JD LLM

The Medicare Prescription Drug, Improvement, and Modernization Act of 2003 ("Medicare Act of 2003") amended the law to authorize the government to seek reimbursement in a personal injury case for prior conditional Medicare payments made on behalf of an injured party under the Medicare Secondary Payer statute. Before the amendment in 2003, the government was denied reimbursement for prior Medicare payments made in some personal injury cases.

This article provides an overview of Medicare eligibility laws and procedures as they pertain to personal injury cases. It also examines the impact of the Medicare Act of 2003 on the Medicare Secondary Payer statute.

Medicare Eligibility

Medicare is the federal health insurance program that provides major medical and hospital coverage for eligible classes of individuals. These four classes consist of:

  1. individuals 65 years of age or older who are entitled to Social Security or Railroad Retirement benefits;
  2. disabled individuals of any age who have been receiving Social Security Disability ("SSD") or Railroad Retirement benefits for twenty-four months;
  3. individuals with end-stage renal disease who require dialysis or a kidney transplant; and
  4. individuals over the age of 65 who are not eligible under the three classifications listed above, but privately purchase Medicare insurance and pay the premiums.

Generally, an injured a person suffering from a personal injury will access Medicare under the second classification. If the injured person cannot engage in substantial gainful employment, he or she will qualify for SSD. After an injured person has received SSD for twenty-four months, he or she will qualify for Medicare.

Medicare Secondary Payer Statute

The Medicare Secondary Payer ("MSP") statute was created by the Omnibus Budget Reconciliation Act of 1980. The purpose of the MSP statute was to ensure that Medicare was only secondarily responsible for paying the medical expenses of individuals covered by Medicare if they also were covered by another type of private insurance.

On several occasions after its enactment, Congress expanded the reach of the MSP statute. Medicare is now secondary for a larger class of Medicare beneficiaries who have other primary sources of insurance coverage.

Primary and Secondary Payers

Medicare serves as the back-up medical insurance plan to an injured party who cannot receive payment from a primary insurance plan. In other words, the insurance company or other responsible party remains the primary payer. As secondary payer, medical benefits are payable by Medicare only to the extent that payment has not been made and cannot reasonably be expected to be made under coverage by the primary payer. Any secondary payment made by Medicare is considered a "conditional payment" subject to reimbursement.

If the Medicare recipient is not covered under a primary plan of insurance, the reimbursement provisions of the MSP statute are not triggered. In this situation, Medicare remains the primary medical plan.

Prior MSP Statute

Prior to the Medicare Act of 2003, the government had to prove two key elements to invoke the repayment provisions of the MSP statute. First, the government was required to establish that the Medicare recipient had another source of medical coverage under a "primary plan" of insurance regardless of whether that source of medical coverage was a group health plan, workers' compensation plan, liability insurance, or a self-insurance plan. Second, payment of the injured party's medical expenses was reasonably expected to occur "promptly" by a workers' compensation plan, automobile or liability insurance policy (including a self-insured plan), or under a no fault insurance plan.

Both of these elements proved difficult for the government to establish. For example, Medicare was denied reimbursement where a single defendant in a tort case was found not to maintain a self-insurance plan. Prior to amendment, the MSP statute did not reference a right of action for reimbursement against tortfeasors. Instead, the previous MSP statute allowed recovery only from an insurer. A defendant's decision to pay a contested liability case out of its own funds did not mean the defendant maintained a self-insured plan for purposes of the MSP statute.

Another problem with the previous MSP statute was with the "prompt" payment requirement. Prior to amendment, the repayment provisions of the MSP statute were triggered only when payment had been made, or can reasonably be expected to be made promptly from a workers' compensation law, an automobile, liability insurance policy or plan (including a self-insured plan) or under no fault insurance.

"Promptly" was defined in the regulations as payment within 120 days after the earlier of:

  1. the date the claim was filed, or
  2. the date the service was provided or the patient was discharged from the hospital.

Thus, for a Medicare payment to be secondary, the government had to prove that when Medicare paid for the medical care of an eligible Medicare beneficiary, there was a reasonable expectation that another primary plan of insurance would pay for such care "promptly."

Medicare Act of 2003 Amendments

The MSP statute was amended by the Medicare Act of 2003 to overcome the two problems discussed above ("primary plan" of insurance and pay "promptly"). The following discussion addresses several changes to 42 U.S.C. § 1395y(b)(2), which is also referred to in this article as "§ (2)," with applicable subsections indicated.

Under the new amendment, the term "promptly" was deleted from § (2)(A)(ii), and added to § (2)(B)(i). This change in location solved two problems. First, under § (2)(A)(ii), it no longer is necessary for a defendant or alleged tortfeasor to make a prompt payment of a medical bill to trigger the payback provisions of the MSP statute.

Second, if there is a dispute as to the liability of an alleged tortfeasor to pay the medical bills of an injured party, Medicare may make an advance or "conditional" payment under § (2)(B)(ii). Such payment may be made if a primary plan described in § (2)(A)(ii) has not paid or cannot reasonably be expected to promptly make payment with respect to such item or service. This allows a Medicare-eligible beneficiary in a contested personal injury case to receive continued medical treatment from Medicare while preserving Medicare's right to reimbursement from a primary plan that eventually is found responsible for payment.

By adding the last sentence to § (2)(A)(ii), the new amendment expands the definition of a primary plan of insurance. The new definition eliminates the need to have insurance in place to trigger the payback provisions of the MSP statute. Any defendant or tortfeasor in a personal injury case will be "deemed" to have a primary plan of insurance "if it carries its own risk (whether by a failure to obtain insurance, or otherwise) in whole or in part."

The new amendment changed the definition of a primary plan by deleting the first sentence of § (2)(B)(ii). Under § (2)(B)(ii), a primary plan must reimburse Medicare if it can be demonstrated that the primary plan was responsible for making payment. According to the amendment:

  • A primary plan's responsibility for making a payment may be demonstrated by a judgment, a payment conditioned upon the recipient's compromise, waiver, or release (whether or not there is a determination or admission of liability) of payment for items or services included in a claim against the primary plan or the primary plan's insured, or by other means.

Retroactive Effective Dates

The Medicare Act of 2003 includes a retroactive effective date. Under Pub.L. No. 108-173, § 301(d) of the amendment, the deletion of the clause "promptly (as determined in accordance with regulations)" under § (2)(A)(ii) and the addition of the new § (2)(B)(i) clause are effective as if included in the enactment of Title III of the Medicare and Medicaid Budget Reconciliation Amendment of 1984. The addition of the last sentence under § (2)(A)(i) and the remainder of the changes made to § (2)(B)(ii) and § (2)(B)(iii) are effective as if included in the enactment of the Omnibus Budget Reconciliation Act of 1980, § 953.

Due to the retroactive enactment date provided in the amendment, it is advisable for attorneys involved in the settlement of personal injury (or workers' compensation) cases to review their closed cases. Such a review should include a determination as to whether a Medicare secondary payment was made within the six-year statute of limitations.

Payment of Past Medical Expenses

The regulations require a third-party payer to notify Medicare if the third-party payer learns that Medicare has made a payment for an injured person's medical expenses. If a third-party payer fails to ascertain the existence of a Medicare claim, the government "has a direct right of action to recover from any entity responsible for making primary payment."

As specified in the MSP regulations, it is the responsibility of the third-party payer (usually the insurance company) to determine the existence of a Medicare claim. Although it is clear the regulations impose on a Medicare beneficiary a "duty of cooperation" with Medicare, it is less clear whether the same duty is imposed on the attorney for the beneficiary.

The Centers for Medicare and Medicaid Services ("CMS") is the federal agency that administers the Medicare program for the Health Care Financing Administration. According to the CMS, an attorney assisting with the settlement of the case has a duty to assist in the recovery of any prior conditional payments.

The attorney should, at a minimum, advise the beneficiary-client of the beneficiary's duty to cooperate with Medicare to recover any prior conditional payments. The client must understand that he or she may face possible collection proceedings or a termination of future Medicare benefits if the MSP claim is not paid at settlement.

Other Medicare Considerations

If the possibility of a Medicare claim exists, the attorney should determine the amount of the claim and know the procedures to negotiate a reduction of the claim. If the client is Medicare-eligible prior to the settlement, the attorney should not rely on the client's assertion that Medicare never paid any medical expenses.

Coordination of Benefits Office

Questions regarding the existence of any conditional payments made by Medicare should be directed to CMS's Coordination of Benefits ("COB") Contractor. The COB Contractor will require the beneficiary's name, Medicare or Social Security number, date of the incident, nature of the injury, and name and address of the other insurance. The COB Contractor will send a "Medicare right of recovery" letter and "release of information" form for the beneficiary's signature. The COB Contractor will create a Medicare secondary payer record in the CMS database for the Medicare beneficiary.

The lead Medicare recovery contractor (usually the Part A Fiscal Intermediary in the beneficiary's state of residence) contacts the other local contractors to identify all claims paid on behalf of the beneficiary. The COB Contractor will determine which claims do and do not relate to the accident or injury. Medicare receives reimbursement only for "conditional payments" made for claims related to the accident or injury and not to unrelated claims; therefore, a careful review must be made of the claims listed by the COB Contractor.

Currently, there is no single database that provides a list of all claims paid by Medicare. Thus, attorneys should promptly contact the COB Contractor. If claims were paid by multiple contractors, such as hospital services, doctor visits, and home health care agencies, it may take considerable time to ascertain the requested claims information.

Medicare Claim Procurement Costs

The amount Medicare recovers is reduced by a proportionate share of the necessary procurement costs incurred in obtaining the settlement. Procurement costs include the claimant's expenses in the underlying lawsuit, such as expert witness fees, court costs, and attorney fees. The amount Medicare recovers after procurement costs is calculated under one of three methods:

  1. If Medicare payments are less than the judgment or settlement amount, the Medicare recovery is computed as follows. First, determine the ratio of the procurement costs to the total judgment or settlement payment. Second, apply the ratio to the Medicare payment. The product is the Medicare share of procurement costs. Third, subtract the Medicare share of procurement costs from the Medicare payments. The remainder is the Medicare recovery amount.
  2. If Medicare payments equal or exceed the judgment or settlement amount, the Medicare recovery amount is the total judgment or settlement payment minus the total procurement costs.
  3. If CMS must bring suit against the Medicare beneficiary because the Medicare beneficiary opposed CMS's recovery, the Medicare recovery amount is the lower of the following:
    1. Medicare payment; or
    2. total judgment or settlement amount, minus the party's total procurement cost.

Other Methods to Reduce Medicare Claims

A Medicare beneficiary has the right to appeal the amount of the MSP recovery claim if that amount is incorrect. Additionally, a Medicare beneficiary may ask Medicare to waive, partially waive, or compromise the recovery claim. Each method has different requirements and procedures to follow.

The statutory methods to reduce Medicare's claim are all post-settlement procedures. Prior to settlement, a Medicare beneficiary may institute a private cause of action for damages against a third-party payer for not paying the Medicare claim under 42 U.S.C. § 1395y(b)(3). A successful plaintiff is entitled to collect double the amount of damages that otherwise would be available from a primary payer that did not pay Medicare. Additionally, Medicare's claim attaches to the entire settlement. Medicare's claim to the entire settlement is reduced if the release and settlement agreement does not apportion damages to future medical expenses. As a precaution, attorneys should assume that Medicare will not respect any apportionment agreement unless the issues are contested and approved by a court.

Appeal Process

An administrative appeal process is available if the amount of the claim Medicare is seeking to recover is incorrect. For example, if the MSP claim includes medical expenses unrelated to the personal injury, the amount in controversy is contested through an administrative appeal process. The appeal process requires an initial reconsideration by the intermediary, followed by an administrative hearing with a Social Security law judge. If the amount in controversy exceeds $100 (which is almost certain to be the case), the matter is reviewed by the Department of Appeal Boards. After the administrative process is exhausted, judicial review is available in the federal district court if the amount in controversy exceeds $1,000.

Criteria for Compromise Determinations

Under the Federal Claims Collection Act ("FCCA"), a federal agency has authority to compromise or suspend a claim when the probability of recovery or the amount of the claim does not warrant pursuing the claim. Medicare uses the following factors to determine if a compromise or suspension of a claim is warranted:

  1. the cost of collection does not justify the enforced collection of the full amount of the claim;
  2. there is an inability to pay within a reasonable time on the part of the individual against whom the claim is made; or
  3. chances of successful litigation are questionable, making it advisable to seek a compromised settlement.

The authority to compromise a Medicare claim is reserved exclusively for the CMS home office or regional offices. Any agreement for a compromise settlement under the FCCA may not be appealed.

Criteria for Waiver Determinations by CMS

The Secretary of CMS is authorized to waive an MSP recovery if doing so would be "in the best interest of the Medicare program." As with the compromise provisions, CMS regional offices have authority to handle a request for a waiver if the total amount of the claim is under $100,000. Any claim in excess of $100,000 is sent to the CMS central office in Baltimore. Any waivers granted under this provision may not be appealed because they are granted at the discretion of CMS.

Criteria for Waiver Determinations by Lead Contractor

After being notified of the case, the COB office will assign a lead contractor to process MSP recovery claim. The most commonly used method to waive or partially waive a Medicare recovery is handled directly by the Medicare lead contractor after settlement of the case. A request for waiver to the lead contractor is to be completed within 120 days from the date the waiver is submitted to the lead contractor.

A waiver or partial wavier will be approved by the lead contractor based on the following standards. First, the Medicare beneficiary is without fault. Second, a recovery by Medicare would either defeat the purpose of the Social Security and Medicare programs or would be against equity and good conscience.

"Without Fault" Standard. To determine if a beneficiary is "without fault," the lead contractor will consider four factors. These are:

  1. the amount of out-of-pocket medical expenses incurred by the beneficiary;
  2. whether the beneficiary's assets are insufficient to pay Medicare;
  3. the beneficiary's assets, monthly income, and expenses; and
  4. the age of the beneficiary and whether he or she has any physical or mental impairments.

"Defeat the Purpose" Standard. To "defeat the purpose of the Social Security or Medicare programs" means that a recovery against a beneficiary will cause financial hardship by depriving the beneficiary of income required for ordinary and necessary living expenses. An example of financial hardship includes a case where the beneficiary has spent the settlement or insurance proceeds and the only remaining income from which the beneficiary could attempt to satisfy the Medicare claim is from money needed to pay for his or her basic monthly living expenses.

"Against Equity and Good Conscience" Standard. The "against equity and good conscience" test considers, but is not limited to, the following factors:

  1. the degree to which the beneficiary did not contribute to causing the overpayment;
  2. the degree to which Medicare contributed to causing the overpayment;
  3. the degree to which repayment would cause undue hardship to the beneficiary; and
  4. whether the beneficiary would be unjustly enriched by granting a waiver or was harmed by relying on erroneous Medicare information.

The MSP Manual provides numerous examples of when waivers will or will not be granted. The Medicare beneficiary may appeal an adverse decision on a request for waiver.

Securing a Release from Medicare

The prudent attorney will require Medicare to sign a release of its claim. As soon as the amount of the Medicare claim is agreed on, a check made payable to Medicare should be sent to the contractor. If requested, Medicare will send a release on receipt of the check.

If a liability insurer sends the contractor a check to repay Medicare, it is possible the check will be made out jointly to Medicare and other parties, such as the beneficiary or representing attorney. In this event, the contractor will require the other parties to first endorse the check and return it to the Medicare contractor. The Medicare contractor will not sign the check prior to the other parties endorsing the check. If the contractor determines the check is not for the full amount of Medicare's claim, or the other payees refuse to endorse the check and return it to Medicare, the contractor will refer the matter to the Regional Office.

Medicare's Enforcement Rights

Medicare has several separate and distinct means to obtain reimbursement. Three significant methods are discussed below.

Direct Right of Recovery. First, Medicare may pursue a direct right of recovery against any or all entities that are or were required or responsible (directly, an insurer or self-insurer, as a third-party administrator, as an employer that sponsors or contributes to a group health plan, or large group health plan or otherwise) to make payment with respect to the same item or service (or any portion thereof) under a primary plan of insurance.

A third-party payer's obligation to reimburse Medicare for such claim continues even if the third-party payer has already reimbursed the beneficiary or other party. In short, the government can make the third-party payer pay twice.

The government also may collect double damages against any such entity that fails to reimburse Medicare. Under the Medicare Act of 2003, the list of entities against which the government may assert double damages is expanded to include all entities responsible for making a payment under a "primary plan" of insurance. A primary plan of insurance includes any entity that has made a payment conditioned on the recipient's compromise, waiver, or release (regardless of whether there is a determination or admission of liability) of payment for items or services included in a claim against the primary plan or the primary plan's insured, or by other means.

In addition to the action against a "primary plan," the government may pursue a direct cause of action against "any entity that has received payment from a primary plan or from the proceeds of a primary plan's payment to an entity." An entity that receives a third-party payment includes a beneficiary, provider, supplier, physician, attorney, state agency, or private insurer.

Services Paid by Medicare: Regarding services for which Medicare has paid, CMS is subrogated to any individual, provider, supplier, physician, private insurer, state agency, attorney, or any other entity entitled to payment by a third-party payer. Medicare's right of subrogation gives it priority over all other subrogated parties and claims.

Deduction of Outstanding Obligation: Authority exists for CMS to deduct any outstanding monetary obligation of a Medicare beneficiary against his or her future Social Security or Railroad Retirement benefits. Additionally, the Medicare beneficiary will face collection proceedings or a termination of future Medicare benefits if the MSP claim is not paid.

Conclusion

The changes made to the MSP statute by the Medicare Act of 2003 corrects some of the prior problems associated with the MSP statute in personal injury cases. The substantive changes to the statute, coupled with the regulations promulgated by CMS expose more personal injury cases to the obligation to reimburse medicare for prior conditional payments made on the primary payer's behalf.  While the authority for government recovery has been expanded, there are still methods to consider to reduce or eliminate Medicare's claim.

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  1. Medicare Prescription Drug, Improvement, and Modernization Act of 2003 ("Medicare Act of 2003"), Pub.L. No. 108-173, § 301.
  2. 42 U.S.C. § 1395y(b)(2).
  3. For more information on Medicare rules relating to personal injury cases, see the Centers for Medicare and Medicaid Services ("CMS") website at http://www.cms.gov/medicare. The CMS administers the Medicare program for the Health Care Financing Administration.
  4. 42 U.S.C. §§ 1395 et seq.
  5. Omnibus Budget Reconciliation Act of 1980, Pub.L. No. 96-499, § 953, 94 Stat. 2599 (1980).
  6. The Omnibus Budget Reconciliation Act of 1981, Pub.L. No., 97-35, Stat. 357, made Medicare secondary to group health coverage for end-stage renal patients. The Tax Equity and Fiscal Responsibility Act of 1982, Pub.L. No., 97-248,made Medicare secondary to working employees and their spouses between the ages of 65 and 69 who were covered under large group health plans. The Omnibus Budget Reconciliation Act of 1986, Pub.L. No. 99-509, made Medicare secondary for disabled individuals enrolled in large employer group health plans.
  7. 42 C.F.R. § 411.21.
  8. Under 42 U.S.C § 1395y(b)(2)(B)(ii), prior to the Medicare Act of 2003, supra, note 1, the United States was required to: (1) identify its Medicare beneficiaries; (2) specify the medical items or services it provided; and (3) plead and prove that the defendants were "required or responsible" to make primary payment with respect to that beneficiary and those medical items or services." In re Silicone Gel Breast Implants Prods. Liab. Litig., 174 F.Supp.2d 1242, 1251-152 (N.D.Ala. 2001).
  9. 42 U.S.C § 1395y(b)(2)
  10. Id.
  11. Thompson v. Goetzmann, 315 F.3d 457 (5th Cir. 2002).
  12. Mason v. Am. Tobacco Co., 346 F.3d 36 (2d Cir. 2003).
  13. Goetzmann, supra, note 11 .
  14. 42 U.S.C. § 1395y(b)(2)(A)(ii).
  15. 42 C.F.R. § 411.50(b).
  16. In re Orthopedic Bone Screw, 202 F.R.D. 154, 167 (E.D.Penn. 2001). ("Given the time delay inherent in strongly prosecuted and defended tort litigation, the Government cannot legitimately assert that a settlement arrived at in the heat of a hard fought adversarial engagement for alleged tort liability from a defective product is the type of insurance 'plan' that the Government can reasonably be expected to make prompt payment for medical care."). See also In Re Dow Corning Corp., 250 B.R. 298, 348 n.29 (Bankr.E.D.Mich. 2000); Goetzmann, supra, note 11. For contrary holdings, see U.S. v. Baxter Int'l, Inc., 345 F.3d 866 (11th Cir. 2003); Brown v. Thompson , 252 F.Supp.2d 312 (E.D.Va. 2003).
  17. Medicare Act of 2003, supra, note. 1.
  18. 42 U.S.C. § 1395y(b)(2)(B)(ii).
  19. Id.
  20. In a Fourth Circuit Court of Appeals case, Brown v. Thompson, No. 03-1588 (4th Cir. July 7, 2004), the court ruled that changes to the Medicare Secondary Payer ("MSP") statute made in the Medicare Act of 2003 may be applied retroactively because they merely clarify previous law. See http://caselaw.findlaw.com/data2/circs/4th/031588p.pdf.
  21. Medicare and Medicaid Budget Reconciliation Amendment of 1984, Pub.L. No. 98-369.
  22. Omnibus Budget Reconciliation Act of 1980, Pub.L. No. 96-499, § 2647, 94 Stat. 2599 (1980).
  23. A six-year statute of limitation exists for an MSP claim under 28 U.S.C. § 2415(a ). See In re Dow Corning, supra, note 16 (authority that a three-year statute of limitation, applicable to federal contract claims, should apply and not the six-year statute of limitation). Federal preemption will require the application of the federal statute of limitation and not state law. Id.
  24. 42 C.F.R. § 411.21 defines a third-party payer as any "insurance policy, plan or program that is primary to Medicare" and a third-party payment as "a payment by a third-party payer for services that are also covered by Medicare."
  25. 42 C.F.R. § 411.25.
  26. 42 C.F.R. § 411.24.
  27. 42 C.F.R. § 411.23.
  28. See Cork, "A Lawyer's Ethical Obligations When the Client's Creditors Claim a Share of the Tort Settlement Proceeds," 39 Tort Trial & Ins. Practice L.J. 121 (2003). Under Rule 1.15 of the Model Rules of Professional Conduct, the lawyer has a duty to his or her client's creditors if the creditor has an interest in the settlement proceeds.
  29. See information on the CMS, supra, note 3. A minority of commentators believe that the personal injury attorney is not required to act as the collection agency for Medicare. See Hart, "Recovery Powers Under Medicare's Secondary Payer Program," Trial 54 (Sept. 1997). However, a majority of commentators believe the attorney owes some duty to ascertain the Medicare claim and then advise clients of their options. See letter from Mark A. Cameli, Assistant U.S. Attorney, Chief of Civil Division, to Editor, Trial 10 (June 1998). See also U.S. v. Sosnowski, 822 F.Supp. 570 (W.D.Wis. 1993) (Medicare obtained judgment against plaintiff and his attorney).
  30. There are no reported cases where an attorney was disciplined for not paying a Medicare claim. Nonetheless, there are disciplinary cases against attorneys for not paying Medicaid liens. In Durie v. State, 751 So.2d 685 (Fla.App. 5 Dist. 2000), the attorney was convicted of larceny when he structured the settlement in a way to deprive the Medicaid of its share of the recovery.
  31. Under 42 C.F.R. § 411.25(a) and (b), if a third-party payer learns that Medicare has made a payment for an injured worker's medical expenses, it must notify Medicare. Nonetheless, due to the potential loss of benefits to the Medicare beneficiary and the potential liability to the attorney, counsel for the Medicare beneficiary should take the lead and contact the CMS's Coordination of Benefits ("COB") Contractor. More information about the COB can be found online at http://www.cms.gov/medicare/cob.
  32. The COB Contractor can be reached Monday through Friday, 8:00 a.m. -8:00 p.m. Eastern Time (except holidays) at its toll-free number, (800) 999-1118. The mailing address for written inquiries is: Coordination of Benefits, P.O. Box 5041, New York, NY 10274-5041. See the COB website, supra , note 32, for more information.
  33. Intermediaries are insurance companies that have contracted with Medicare to administer Part A benefits for a specific region. Carriers are insurance companies CMS has selected to process all Part B Medicare claims submitted by a Medicare beneficiary or the doctors, clinics, hospitals, and labs that have contracted with Medicare through an insurance company to provide Part B Medicare benefits for a particular region.
  34. CMS standards require contractors to respond to all correspondence within forty-five days from receipt. MSP Manual , available at http://www.cms.hhs.gov/manuals, at 7-§ 50.5.4.4.3.
  35. 42 C.F.R. § 411.37(c).
  36. Id.
  37. See MSP Manual, supra, note 35 at 7-§ 50.2.2.B for a worksheet to calculate procurement costs.
  38. 42 C.F.R. § 411.37(d).
  39. 42 C.F.R. § 411.37(e). See Estate of Washington v. U.S., 53 F.3d 1173 (10th Cir. 1995) (what constitutes "opposition" of Medicare claim) ; Sosnowski, supra, note 30 at 570 same ).
  40. 42 U.S.C. § 1395ff.
  41. 42 U.S.C § 1395gg(c), 42 U.S.C. § 1395(b)(2)(B)(iv), and 31 U.S.C. § 3711, respectively.
  42. 42 U.S.C. § 1395ff; 42 C.F.R. §§ 404.900 et seq.
  43. Federal Claims Collection Act, 31 U.S.C. § 3711.
  44. Medicare Fiscal Intermediary Manual, § 3407.12, available at http://www.cms.hhs.gov/manuals.MSP Manual, 7-§ 50.6, supra, note 35.
  45. Medicare Part A Intermediary Manual, available at http://www.cms.hhs.gov/manuals , at § 3418.2(B) .
  46. 42 U.S.C. § 1395y(b)(2)(B)(iv).
  47. 42 C.F.R. § 405.705(d).
  48. 42 U.S.C. § 1395gg.
  49. Medicare Part A Intermediary Manual, supra, note 47 at § 3418.
  50. 42 U.S.C. § 1395gg(c).
  51. MSP Manual, supra, note, 35 at 7-§ 50.6.3.
  52. Id. at 7-§ 50.6.5.
  53. Id. at 7-§ 50.6.5.1.
  54. Id. at 7-§ 50.6.5.2.
  55. Id. at 7-§ 50.6.5.1 and 7-§ 50.6.5.2.
  56. 42 U.S.C. § 1395gg.
  57. One court has placed the responsibility for securing a release from Medicare on the plaintiff. Liss v. Brigham Park Coop. Apts. Sec. No. 3, Inc., 694 N.Y.S.2d 742 (N.Y.A.D.). 1999).
  58. MSP Manual, supra, note 35 at 7-§ 50.4.3.B.
  59. Id.
  60. Medicare Act of 2003, supra, note 1 at § 301(b)(3).
  61. 42 C.F.R. §411.24(i)(1).
  62. Medicare Act of 2003, supra, note 1 at § 301(b)(3).
  63. Id.
  64. 42 C.F.R. § 411.24(g).
  65. Although a Medicare beneficiary has an affirmative duty to file a workers' compensation claim, there is no such affirmative duty for a Medicare beneficiary to attempt to collect damages against a liability insurance carrier or defendant. 42 C.F.R. § 411.24(k)(1) and (2) ("Basic rule. If Medicare makes a conditional payment with respect to services for which the beneficiary or provider or supplier has not filed a proper claim with a third-party payer, and Medicare is unable to recover from the third-party payer, Medicare may recover from the beneficiary or provider or supplier that was responsible for the failure to file a proper claim. (2) Exceptions: (i) This rule does not apply in the case of liability insurance nor when failure to file a proper claim is due to mental or physical incapacity of the beneficiary."). If a claim is filed by a Medicare beneficiary against a liability insurance carrier, under 42 C.F.R. § 411.23, CMS may pursue a direct action against the Medicare beneficiary if CMS is unsuccessful in collecting because the beneficiary did not cooperate with CMS in the collection proceedings.
  66. Goetzman n , supra, note 11 (Goetzman n was personal injury attorney who obtained damage recovery for Medicare beneficiary).
  67. 42 C.F.R. § 411.24(g).
  68. 42 C.F.R. § 411.26(a).
  69. U.S. v. Geier, 816 F.Supp. 1332, 1334 (W.D.Wis. 1993).
  70. In re Orthopedic Bone Screw, supra, note 16. n

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