ISSUES ARISING OUT OF THE MEDICARE SECONDARY PAYER ACT

ISSUES ARISING OUT OF THE MEDICARE SECONDARY PAYER ACT BY EUGENE J. PODESTA, JR. BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ 165 Madison Avenue, Suite 2000 Memphis, TN 38103 Rising medical costs and swelling federal deficits, along with some recently enacted legislation, may make it hard to settle that personal injury file sitting on the corner of your desk, particularly if the claimant is a Medicare beneficiary. This paper addresses some of the issues raised by the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA). A comprehensive outline of the reporting requirements of MMSEA is beyond the scope of this paper. The intent, rather, is to focus on certain provisions of the law and the obstacles these provisions pose to the resolution of personal injury claims. HISTORICAL PROSPECTIVE Medicare was originally enacted in 1965, 42 U.S.C. 401, et seq. It was intended to be the primary insurer of Americans over the age of 65 or disabled. The original statute excluded only treatment for work-related injuries from its primary coverage. 42 U.S.C. 426(a). In those circumstances, Medicare was secondary to worker s compensation coverage. In 1980, Congress passed, and President Carter signed, the Medicare and Medicaid Amendments codified at 42 U.S.C. 1395. Section 953 of that legislation, commonly called the Medicare Secondary Payer Act (MSP) expanded the original exclusion from Medicare coverage of claims covered under worker s compensation insurance by also excluding claims covered by other forms of insurance such as automobile, liability, and no fault coverages. The intent of this expansion was to reduce Medicare expenditures by preventing Medicare from making payments where other entities had legal or contractual obligations to do so. Medicare is

prohibited from making primary payments under such circumstances, but it can make conditional or secondary payments in certain circumstances when payment is not expected to be made by the primary payer in a timely manner to ensure that prescribed treatment would be received, subject to a statutory primary right of recovery. Conditional or Secondary Medicare payments may also be made in a liability case if CMS has information that services for which Medicare benefits have been claimed are for treatment of an injury or illness that was allegedly caused by another party. 42 C.F.R. 411.52. The Medicare Secondary Payer Provisions were further expanded by Congress in 2003 to define and include self-insurance plans as a primary payer. 42 U.S.C. 1395y(b)(2)(A). This enactment also made clear that settlements in personal injury claims are covered under the secondary payer law. With this passage, Medicare could recover any conditional or secondary payments from any entity in receipt of payment from the primary payer. 42 U.S.C. 1395y(2)(B)(iii). MEDICARE S RIGHT TO RECOVER SECONDARY PAYMENTS If Medicare makes secondary payments for treatment, it is entitled to be repaid upon notice or receipt of information that the payment for the treatment has been made or could be made under a group health plan, no fault policy, auto or general liability policy, or when payment is made under a self-insured plan. 42 U.S.C. 1395y(b)(2)(B). Simply stated, the Medicare legislation provides for a direct action and subrogation rights to the United States for the secondary payments it makes. Medicare automatically becomes subrogated to the rights of the claimant or entity entitled to payment. The Medicare Secondary Payer statute gives the Centers for Medicare and Medicaid Services (CMS) the right to intervene or join an action related to the events that gave rise to the need for services for which Medicare paid. 42 C.F.R. 411.26(b). This right to full recovery applies to settlements regardless of whether the 2

settlement agreement states that there is no admission of liability. 42 U.S.C. 1395(y)(b)(2)(B). If CMS seeks reimbursement, the potentially liable entities include an employer, automobile or general liability insurance carrier, self-insured plan or program, and third party administrators. 42 C.F.R. 411.24(e). The list does not end there as CMS also has the right to recover its payments directly from anyone who received a third party payment, including a beneficiary, provider, supplier, physician, attorney, state agency, or private insurer. 42 C.F.R. 411.24(g). Finally, CMS has the right to recover the full amount of a Medicare lien even if the lien amount exceeds the amount of the plaintiff s settlement. 42 C.F.R. 411.24(c). The MSP User Manual, 50.53 states: [T]he fact that a settlement has been made between the beneficiary and the liable party does not, necessarily, bind Medicare to that settlement. If the liability carrier was aware of Medicare s interest, but Medicare was not consulted in the settlement, Medicare may recover the balance of its claim, over and above any amount granted to it in the agreement, against the liability insurer. If a lawsuit is necessary against a primary payer, CMS is entitled to recover twice the amount of the Medicare primary payment and may also recover interest. Perhaps most importantly, if Medicare is not reimbursed as required, the third party payer must reimburse Medicare even though it has already paid the beneficiary or other party. 42 U.S.C. 1395y(b)(2)(B)(ii) and (iii); 42 C.F.R. 411.24(c)(2), (i)(1) and (m)(1)-(2). An interesting case is pending in the U.S. District Court for the Northern District of Alabama. In U.S. v. Stricker, Cause No. CV-09-KOB-2423-E, the government seeks to recover amounts paid by Medicare for 907 Medicare beneficiaries that were members of the plaintiff class. The underlying products liability action was settled in 2003. Among the defendants from whom the government seeks to recover all payments made are the settling defendants and their insurers and all attorneys for the plaintiff class that received settlement proceeds. 3

Cases addressing the MSP right to recover are few. Perhaps the most noteworthy Zinman v. Shalala, 67 F.3d 841 (9 th Cir. 1995), which involved a class action brought to challenge the government s claim that it was entitled to recover all its Medicare expenditures whether or not the injured Medicare beneficiary obtained a full-value tort recovery. The court held that the Department of Health and Human Services has interpreted the MSP legislation to allow full recovery of conditional Medicare payments even when the beneficiary settlement is for less than her total damages, i.e. a discounted settlement. The holding in Zinman strongly suggests that Medicare is not required to accept any allocation of settlement funds agreed to by the parties. For example, if a portion of the settlement is allocated to lost wages or pain and suffering, Medicare will not reduce the amount it seeks to recover based upon any proposed allocation. Medicare can and will seek reimbursement from the entire settlement amount (less attorney s fees). Other cases of note include Stalley v. Methodist Healthcare, 517 F.3d 911 (6 th Cir. 2008). In that case, plaintiff brought seven separate suits in district courts in Tennessee against several healthcare providers. In none of the cases did plaintiff assert any direct injury. Rather, plaintiff asserted that the healthcare provider defendants violated the MSP by failing to reimburse Medicare for unspecific payments that Medicare supposedly advanced to treat unspecified medical errors made in the care of unspecified Medicare beneficiaries. Plaintiff asserts that the MSP statute was a qui tam statute which allowed him to assert these claims on behalf of the United States. The Sixth Circuit noted: In order to facilitate recovery of conditional payments, the MSP provides for a government action against any entity that was responsible for payment under a primary plan, 42 U.S.C. 1395y(b)(2)(B)(iii), and subrogates the United States to the rights of a Medicare beneficiary to collect payment under a primary plan for items already paid by Medicare, 1395y(b)(2)(B)(iv). The 4

MSP also creates a private right of action with double recovery to encourage private parties who are aware or nonpayment by primary plans to bring actions to enforce Medicare s rights, 42 U.S.C. 1395y(b)(3)(A). 517 F.3d at 915-6 (Internal citations omitted). The court distinguished the MSP from the False Claims Act and its express qui tam provisions and held that the MSP is not a qui tam statute. Any private action must be brought by the injured beneficiary. In Glover v. Liggett Group, Inc., 459 F.3d 1304 (8 th Cir. 2006), a private cause of action was brought against cigarette manufacturers under the MSP for failing to reimburse Medicare for health costs for which the manufacturers were allegedly liable. However, the defendants responsibility to pay for the healthcare expenses of a Medicare beneficiary had not been already established. The court dismissed, holding that before a primary payer is liable to reimburse Medicare under the MSP, it must be demonstrated that such primary plan has or had a responsibility to make payment with respect to the service provided. 42 U.S.C. 1395y(2)(B)(iii). A primary plan s responsibility for such payment may be demonstrated by a judgment, or a payment conditioned upon the recipient s compromise, waiver or release (whether or not there is a determination or admission of liability). See also, Bio-Medical Applications of Tennessee, Inc. v. Central States, 2008 WL 5110800 (E.D. Tenn., Dec. 1, 2008). THE 2007 LEGISLATION The statutory obligation to repay Medicare does not arise until a settlement, judgment, or insurance payment occurs. Then and only then does the obligation to repay Medicare arise by operation of law. Federal regulations have always provided a duty to report settlements to Medicare or its contractors under certain circumstances, but those regulations failed to provide any type of penalties for noncompliance. Therefore, claims and settlements have rarely been reported voluntarily. Usually, settling claimants would sit back and wait until Medicare would 5

make a demand for repayment. This would rarely occur since Medicare was unaware of the primary payer or the settlement. That changed with the passage of the Medicare and Medicaid and SCHIP Extension Act in 2007. Section 111 of MMSEA amends the Medicare Secondary Payer Statute by adding a specific reporting obligation for those considered primary payers. Unlike the toothless reporting requirement in the regulations of old, MMSEA provides that the failure to report an insurance settlement for a Medicare beneficiary carries a $1,000.00 per day per claim penalty, a threat that has caught the attention of the entire insurance industry. This new legislation is found at 42 U.S.C. 1395y(b)(8). This legislation initially required all insurers, including businesses carrying their own liability risks (self-insureds) to register with CMS by September 30, 2009. Those registrants, referred to as Responsible Reporting Entities, must submit comprehensive electronic quarterly reports beginning in January 2011. Additionally, Responsible Reporting Entities must report all settlements, verdicts and awards, in fact payments of any kind, made on or after October 1, 2010. Settlements that in the past escaped Medicare s notice now must be reported by all primary payers. Failure to do so can result in significant and oneorous statutory penalties. The reporting requirements are complex and a detailed discussion of those requirements is beyond the scope of this paper. However, at least two problems regularly arise. The first is that Medicare requires primary payers to report the social security numbers of all claimants. That is how Medicare determines whether the claimant is a Medicare beneficiary. However, liability insurers rarely collect social security numbers on personal injury claimants. In this age of identity theft, claimants are reluctant to disclose social security numbers even when privacy protections are in place. Liability insurers and other reporting entities face additional exposure 6

should their data banks be compromised and claimants social security numbers wrongfully disclosed. The second frequent problem is determining whether or not a claimant with whom a settlement has been reached is a Medicare beneficiary. If the claimant is over 65 years of age, the answer is obvious. However, Medicare also covers social security disability beneficiaries, as well as certain patients with end stage renal disease. In an effort to assist reporting entities in determining whether claimants are in fact Medicare beneficiaries, CMS has created an electronic query function that each Responsible Reporting Entity can access once a month to check Medicare entitlement of a claimant. However, once again, a social security number is required. These new reporting requirements materially enhance Medicare s ability to enforce its rights under the MSP statute. First of all, it is much easier for CMS to pursue insurers as primary payers rather than pursuing claimants. Those primary payers must now notify Medicare of all verdicts, settlements as awards or face stiff penalties. Congress has given Medicare a private cause of action against all parties involved in the settlement. 42 U.S.C. 1395y(b)(3)(A). These Medicare Secondary Payer issues can present significant obstacles when attempting to settle any case involving personal injury of a Medicare beneficiary. First of all, defendants must confirm the Medicare eligibility status of any claimant as of the date of payment. If the settled claim is in litigation, this should be the focus of discovery at the outset. If the claimant is a Medicare beneficiary, defense counsel must then determine whether Medicare has made an Initial Determination of the amount subject to the Medicare lien and, if so, whether the claimant has accepted that determination. Under these circumstances, all parties have the benefit of knowing the extent of Medicare s interest. 7

In most cases, however, no initial determination will have been made by Medicare at the time of settlement largely because no reporting obligation arises until a settlement, verdict, or award occurs. Once notified, neither the statute nor the regulations provides a specific time frame during which Medicare must respond to the notice regarding its interest. If suit is brought by Medicare to collect amounts owed, the limitations period is unclear. Medicare has at least three years from the date the service was furnished. 42 U.S.C. 1395y(2)(B). Most courts have applied the six year limitations period found in the Federal False Claims Act to reimbursement suits by Medicare. See, Manning v. Utilities Mutual, 254 F.3d 387, 397-98 (2 nd Cir. 2001). Waiver or compromise of recovery by Medicare is permitted only after the settlement occurred, and such waivers and compromises have proven to be difficult to obtain. Medicare and its contractors effectively determine which medical bills are related to the claim, and which are not. In determining its interest, Medicare does not account for discounted settlements resulting from significant issues of comparative fault or questionable liability in a case. As a result, the plaintiffs have a diminished interest in settling such a case since all of the discounted settlement proceeds would be subject to Medicare s nondiscounted claim. Additionally, the defendant is exposed over and above the settlement amount to the extent of Medicare s interest. A cost of defense settlement with a Medicare beneficiary with significant medical bills becomes a practical impossibility. Greater uncertainty exists in cases in which part of the settlement consideration is for future medical expenses. In the worker s compensation arena, CMS currently encourages that a portion of any settlement proceeds, in the appropriate case, be set aside for future medical payments. These are called Medicare Set-Asides. Currently, neither the Medicare Secondary 8

Payer law nor the MMSEA amendments impose an express duty to set aside settlement funds to pay for future related medical treatment in liability situations. Most commentators are convinced that those requirements will be imposed in the near future. In those instances in which settlement remains possible despite the Medicare Secondary Payer laws, a number of steps should be taken by defense counsel in settling those cases. As stated above, the defendant must confirm the Medicare status of the claimant as of the date of payment. The parties are required to reasonably consider Medicare s interest in reaching a settlement and this acknowledgement should be reflected in any release. Additionally, the release should contain specific indemnity and hold harmless provisions addressing Medicare s right of recovery and affirmatively stating the obligation of the plaintiff to satisfy Medicare s interest. The parties should agree that all communications with CMS regarding its interest should be covered by Rule 408. Medicare Set-Asides should be considered for reasonably anticipated future medical expenses. In cases where the plaintiff has obtained an initial determination of the amount subject to the Medicare interest, and accepts that determination, the settling defendant should issue separate checks. One check should be issued to the plaintiff and the plaintiff s attorney and the other check directly to Medicare. In the more likely scenario where the extent of Medicare s interest has not been determined at the time of settlement, the defendant should consider making settlement checks payable to the plaintiff, plaintiff s attorney and to Medicare (or CMS). A plaintiff challenged that practice in Wall v. Leavitt, 208 WL 4737164 (E.D. Cal.) (Oct. 29, 2008), asserting that the insurance carrier s issuance of a settlement check made jointly payable with CMS constituted bad faith. In denying plaintiff s claim, the court stated: [T]he provisions of the law require the 9

conclusion that any insurance with an ounce of business sense would include the lien holder Medicare as a payee on one check when it has been notified of an MSP situation. Another alternative for a settling defendant is to pay the settlement proceeds into court and join CMS in the action for a determination of its interests. The 2007 MMSCA did not materially effect the obligations of plaintiff s counsel in connection with personal injury claims of Medicare beneficiaries. However, the steps that prudent plaintiff s counsel should take are of heightened importance. Before the case is accepted by plaintiff s counsel, he or she should gather all information regarding the client s health insurance, including social security number, Medicare number, date of birth, address and date of incident. Additionally, plaintiff s counsel should gather information regarding any responsible parties or primary payers. After taking the case, counsel should notify Medicare immediately. After doing so, Medicare s coordinator of benefits should, in a relatively short period of time, forward a packet to plaintiff s counsel which includes, among other things, a release of information for your client to sign which will allow the Medicare contractor to speak directly to counsel. If you are lucky, before your case proceeds to trial, mediation, or settlement, you will receive a conditional payment letter from the Medicare contractor. That letter should contain an itemized list of charges Medicare was billed and the conditional payments Medicare made on behalf of the client which it claims are related to the lawsuit, sometimes called an Initial Determination. Plaintiff s counsel should review this list carefully. Medicare compiles the list based upon diagnosis codes which may or may not be accurate. Plaintiff s counsel must familiarize himself with these diagnosis codes and review them carefully. We are dealing with elderly or disabled clients who may have significant medical expenses wholly unrelated to the 10

injuries claimed in the lawsuit. The Medicare contractor should be promptly notified of any errors. In most instances, those errors are not fixed by Medicare prior to final resolution of the case. Only after settlement is reached and Medicare is notified of the settlement that Medicare gets serious about cleaning up its claim for payment. In conclusion, the new reporting requirements contained in the 2007 MMSEA, along with the penalty provisions for noncompliance, did not change the substantive law regarding Medicare s right to recover secondary payments it makes from primary payers such as liability insurers or self-insured defendants. However, those reporting requirements make it easier and more likely for Medicare to enforce its super-priority lien status. This will have the effect of making certain cases unsettleable. In other cases, careful safeguards must be taken to protect a settling defendant from exposure to Medicare over and above the amount of the settlement proceeds. 11