Medicare's recovery efforts under Medicare Secondary Payer do not include subrogation of the beneficiary's right to recover from a third party.ﾠ In fact, for liability, workers' compensation and no-fault claims, Medicare seeks recovery directly from the beneficiary.ﾠ Since Medicare recovers from the beneficiary, it does not seek to recover more than the settlement amount of the case or litigation.ﾠ Medicare may demand up to the settlement amount minus any procurement costs if Medicare's conditional payment exceeds the settlement amount, but in practice Medicare tries to leave some of the settlement for the beneficiary.

 

Although there are no statutes or administrative law requiring that insurers (payers)ﾠ to "Protect Medicare's Interest" by directly reimbursing Medicare or setting up annuities to cover future medicals, by statute Medicare can seek recovery directly from the insurer if they are unable to recover from the beneficiary or a settlement unduly shifts the burden of medical payments to Medicare.ﾠ It is important to note that such a recovery would be conducted outside of the normal recovery process (not a role of the MSPRC); it would be through civil court proceedings (see US vs Stricker).

 

Medicare does want Insurers to take into consideration that the beneficiary may not be aware, or prepared to deal with reimbursing Medicare for any conditional payments made on their behalf.

 

• It is common practice today for the insurer to require the claimant or her representative to provide a conditional payment letter (lien) before the insurer will settle the case.
• In the past, some defense attorneys have added text to the settlement documents making the plaintiff attorney liable for any Medicare reimbursement. but most State Bar’s have subsequently condemned that approach and defense has been requesting indemnification from plaintiff
• Some insurers determine the amount of conditional payment made by Medicare by requesting provider records.ﾠ Then, at settlement, theyﾠ withhold ﾠthe amount, have the beneficiary sign a release and subsequently reimburse Medicare. ﾠThis approach has led to some problems (particularly in Florida) where courts have accused insurers of unduly retaining funds waiting on a conditional payment letter from CMS

 

No approach to date has been without some pitfalls