As many of us who practice personal injury law know, the new Medicare and Medicaid laws regarding subrogation interests for a personal injury settlement are time consuming and strenuous to deal with. Many consider these laws draconian in nature because of the harsh penalties that can be handed down on the injured victims and their representatives for even minor mistakes or omissions. In practice, clients want to know why it is taking so long for the release of their settlement funds and become frustrated at us because the government is holding up the process. Even when a case is in an MDL and the attorney has the benefit of a special master and an ombudsman to help, the process is still daunting. However, it looks like there are some new mechanisms on the horizon that will hopefully help alleviate this process for everyone.
The Centers for Medicare & Medicaid Services (CMS) will be implementing an option that will allow certain Medicare beneficiaries to obtain Medicare's final conditional payment amount prior to settlement. This option is scheduled to be available in February 2012, for certain settlements involving physical trauma based injuries where treatment has been completed. Under this option, the beneficiary or his representative will calculate the amount of Medicare's conditional payment amount using information received from the Medicare Secondary Payer Recovery Contractor (MSPRC), the MyMedicare website, or other claims information available to the beneficiary. The MSPRC will review this amount and, if finding the amount accurate, will respond with Medicare's final conditional payment amount within 60 days. To secure the final conditional payment amount, the beneficiary must settle within 60 days after the date of Medicare's response.
In order to use this option, ALL of the following criteria must be met:
- The liability insurance (including self-insurance) settlement will be for a physical trauma based injury (the settlement does not relate to ingestion, exposure, or medical implant- basically disqualifying this option for almost all mass torts cases);
- The total liability settlement, judgment, award, or other payment will be $25,000 or less;
- The Date of Incident occurred at least six months before the beneficiary or his representative submits his proposed conditional payment amount to Medicare;
- The beneficiary demonstrates that treatment has been completed and no further treatment is expected either through a written physician attestation or by certifying in writing that no medical treatment related to the case has occurred for at least 90 days prior to submitting the proposed conditional payment amount to Medicare
Explicit instructions on how to use this process will be posted on the Medicare Secondary Payer Recovery Contractor's website at www.msprc.info by January 15, 2012. CMS will leverage existing processes to the greatest extent possible. This is an initial step to provide beneficiaries and their representatives with Medicare's conditional payment amount prior to settlement. CMS plans to expand this option as it gains experience with this process. Hopefully, this option will be expanded both in the types of injuries and the amount of settlement.
