With increasing enforcement of Medicare’s right to reimbursement of payments made to treat injuries which are the subject of personal injury claims and frequent difficulties dealing with Medicare and its contractors in attempting to resolve those reimbursement rights, litigants, attorneys and state courts are struggling to find ways to ease and speed up the process of determining what amount Medicare is entitled to in reimbursement.

Efforts to resolve reimbursement issues without dealing directly with Medicare and its contractors have included entering into settlement agreements in which the parties to the injury claim provide specific allocations of damages as between economic and noneconomic losses in an attempt to limit Medicare reimbursement to the amount allocated for medical expenses. In some cases the parties have sought and obtained state court orders and judgments confirming those allocations of damages, and even court orders specifically denying or limiting Medicare’s reimbursement rights.

Those settlement agreements and court orders, however, are ineffective in limiting or denying Medicare’s reimbursement rights and the parties and attorneys who enter into those agreements or seek those court orders face severe penalties for failing to comply with the Medicare Secondary Payer statute.

This topic was recently the subject of much discussion among personal injury attorneys in New York and in March 2010 New York Assistant U.S. Attorney Robert Trusiak published an excellent article describing the legal issues and legal authority. The following discussion borrows heavily from Mr. Trusiak’s article, which can be found at the website for the Buffalo Law Journal, March 25, 2010 issue.

The MSP statute (section 1862b of the Social Security Act) and regulations promulgated under that statute provide that workers’ compensation, liability and no fault insurers and self-insureds become primary to Medicare for payment of medical expenses related to an injury if they make payment to a Medicare beneficiary as a result of that injury. Even if the payment is a settlement of a disputed and denied claim, the payment of the settlement makes the insurer or self-insurer primary to Medicare for treatment of that injury. Among other things, that means that the insurer or self-insurer must reimbursement Medicare for any past payments it made to treat the injury. The insurer and self-insurer must also protect Medicare’s interests in any future payments to treat that injury.

The MSP statute and regulations also require the Medicare beneficiary and any attorney for the beneficiary to arrange for reimbursement of Medicare payments if there is a settlement of a personal injury for which Medicare payments were made.

The Personal Injury Claim parties and attorneys have an existing obligation to notify Medicare of the claim and of the settlement and to arrange of reimbursement.

Failure to make reimbursement to Medicare can lead to a number of enforcement actions including denial of future benefits to the Medicare beneficiary, collection through other federal programs (tax refunds, other federal government benefits), direct action against a beneficiary, insurer, self-insurer or attorney and the Federal False Claims Act (FCA) enforcement actions discussed below. Penalties include double damage recoveries and interest as well as FCA penalties.

Medicare is entitled to reimbursement of its payments out of the entire settlement proceeds. Attempts to limit Medicare’s recovery by designating only a portion of the settlement to reimbursement of medical expenses are ineffective as the allocation is not binding on Medicare. Medicare will only recognize and agree to limit its reimbursement based on damages allocations that are based on a court decision on the merits after a contested hearing. That agency position is entitled to “Chevron deference” by the courts under Chevron USA v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984). See Bradley v. Leavitt, 2009 WL 2216580 (M.D. Fla 2009).

MSP issues are exclusively within the province of the federal courts. There is no state court subject matter jurisdiction for a state court to adjudicate an MSP interest. There is no personal jurisdiction of a state court over the United States due to sovereign immunity. Warren v. Secretary of HHS, 868 F2d 1444 (5th Cir, 1989).

The False Claims Act (31 USC 3729) provides for treble damages and a mandatory penalty of $5,000 to $10,000 per false claim. Failure to meet an obligation owed to the federal government is a violation of the FCA. Failure to reimburse Medicare is an obligation owed to the federal government. Qui tam actions under the FCA against parties to personal injury settlements who fail to reimburse Medicare are increasing and will increase exponentially after full implementation of the mandatory insurer reporting law currently in implementation. Each Medicare payment not reimbursed can be claimed as a separate false claim. It is not unusual for a single Medicare beneficiary to have had hundreds of Medicare payments made to cover treatment for a single injury. FCA penalties in a single “failure to reimburse” case in which the total Medicare payments were less than $10,000 could add up to hundreds of thousands (if not millions) of dollars.

Are you on the outlook for a personal injury attorney in Seattle?

Have you recently been hurt or injured because of another person or company’s failure to exercise reasonable care? If so, it is a smart decision to seem legal counsel from a Seattle injury attorney. Experienced attorneys advise on all legal matters regarding the circumstances of your accident, the extent of your injuries, and its long term effects on your life.

A Seattle personal injury attorney can help you determine whether or not you are entitled to financial compensation for damages. This typically includes medical expenses, pain and suffering, lost wages, property damage, permanent disability, and damage to your earning potential.

A Seattle injury lawyer is adept at helping to accurately judge legal responsibility for an accident or injury. The rules for this are often complicated. It’s easy to say someone is guilty of causing the accident and must pay for your injuries but determining who was legally at fault is a little more difficult.

Most injuries caused from accidents occur because of the carelessness of another person. The basic rule most attorneys follow is “if one person in an accident was less careful than another, the less careful one is responsible for paying for at least a portion of the damages suffered by the more careful one.”

Legal responsibility is determined by this rule of carelessness, as well as one or more of the following simple circumstances:

- If the injured party was where they were not supposed to be, or somewhere they should have expected the kind of activity which caused the accident, the party who caused the accident might not be liable since they had no legal duty to be careful.
- If the person injured was also careless or reckless, their financial compensation may be reduced by the extent that they were also responsible for the accident.
- If the negligent party causes the accident while working for someone else, the employer may also be legally liable for the accident.
- If the accident is caused on a dangerous, poorly built or maintained property, the owner of such property is liable, regardless of whether they actually created the dangerous conditions.
- If a defective product caused the accident, then both the manufacturer and seller of the product are liable.

If you have suffered a serious personal injury from accident, don’t sacrifice your future or what you are owed. A Seattle personal injury attorney can help you receive what you deserve.

Violet is a Seattle injury attorney passionate about handling your personal injury, with ease, speed and professionalism. Trust your case to a dynamic Seattle injury lawyer. A Seattle personal injury attorney can act swiftly on your behalf.