Friday, May 18, 2007


Posted by Mary Skinner

My client slipped and fell and injured her shoulder resulting in a Medicare lien of over $18,000. We lost on MSJ and the tortfeasor paid her a nuisance of $2,500 not to appeal the case. I have applied for a waiver of that and am holding that amount in trust.

The attorney who referred the matter to me never processed the med pay of $5,000. The insurance company is willing to pay that now, but wants to put Medicare on the check. Is there authority that Medicare doesn't have a claim to this money? If so, could you refer me to that so I can process this for my clients?

-Ohio Attorney

Medicare has a right to recovery.

The regulations regarding Medicare's right to reimbursement on conditional overpayments in liability situations can be found under 42 CFR s411.23, 411.24, 411.26, 411.37, 411.50, 411.52, and 411.54. It is important to note at this point that "liability insurance" means insurance (including a self-insured pan) that provides payment based on legal liability for injury or illness or damage to property. It includes, but is not limited to automobile liability insurance, uninsured motorist insurance, underinsured motorist insurance, homeowners' liability insurance, malpractice insurance, product liability insurance and general casualty insurance.

These regulations also established that Medicare would be secondary to no-fault insurance, which is defined as "insurance that pays for medical expenses for injuries sustained on the property or premises of the insured." This insurance includes, but is not limited to automobile, homeowners, and commercial plans. This insurance is sometimes called "medical payments coverage," "personal injury protection," or "medical expense coverage." (42 CFR ss411.50)