Wednesday, September 26, 2007

Medicare "lien" news/Help needed

Posted by Matthew Garretson

Last week, in one of the Medicare "administrative waiver" cases I am processing, I received from CMS a complete waiver of any Medicare reimbursement claim, based solely on the language of the Medicare statute and the state court post-settlement allocation order that I have been harping on lo these many years. My waiver request was not based on the economic hardship provisions of the federal regs, nor did I provide any of the client's financial information demanded on the Medicare waiver request form (SSA-632-BK).While it is gratifying that CMS has now evidently conceded on the merits of my argument, it raises some significant procedural questions for the pending federal court action that I had hoped would clear up the issue once and for all. Specifically, this is the first case I know of where Medicare has waived its claim based exclusively on the legal proposition that the federal MSP statute does not allow for reimbursement because medical expense recovery was precluded by the state collateral source statute.Have you, or has anyone you know, ever received a full Medicare reimbursement waiver based solely on submission of an allocation order in a PI (not wrongful death) case? Please contact me if you know of any such cases. Your answer will have important implications for the pending declaratory judgment action against Medicare.

-New Jersey Attorney

It is hard to comment too much without seeing the allocation which triggered the waiver. If the state court allocated no proceeds to medicals... then I am not surprised Medicare waived... that's what they often do.

Don’t get me wrong - I think it is great news… However, I don’t think it is yet a clear policy change…

The following always has been the rule: Medicare is bound by an allocation that has been designated by a court on the merits of the case. “The only situation in which Medicare recognizes allocations of liability payments to non-medical losses is when payment is based on a court order on the merits of the case. If the court or other adjudicator of the merits specifically designates amounts that are for payment of pain and suffering or other amounts not related to medical services, Medicare will accept the Court's designation.” Medicare Intermediary Manual, § 3418.7.

Then, when considering whether or not to grant a waiver, the following documentation is requested:

1) Proof of payment for accident-related out-of-pocket medical expenses
2) Procurement costs
3) Expenses and income information that demonstrates financial hardship (if the beneficiary is alleging financial hardship)
4) Physician statements, if permanent disability is stated
5) Any other pertinent information required to make our determination

If you submit a valid court order on the merits of the case with the Waiver application, the reviewer could consider it under #5 above.

Those are my initial thoughts….

Obtaining Reduction for Attorney Fee

Posted by Mary Skinner

Matt, As you may recall, my office has reached a business arrangement with yours for resolution of liens relating to our nursing home clients. One of my [cases] is far enough advanced in the lien resolution process that it would be counterproductive/non-economical to refer to you.

Would you please advise me of the legal authority for obtaining a one-third reduction for the attorney fee? I know this is commonly done but would like to cite some support in my letter. Further, can I submit my request for this further reduction with my challenge letter versus the charges not causally/temporally related, or is this accomplished as a two step process after exclusion of charges for causal/time issues?

-New York Attorney

1. The legal authority regarding Medicare’s pro rata offset can be found in Title 42 CFR 411.37(c), it stipulates that Medicare will recognize a proportionate share of the necessary procurement costs incurred in obtaining the settlement.

2. As for disputing unrelated charges and requesting the final demand all at once, yes it can be done, however, please be aware that if Medicare does not agree with your argument and does not remove the claims in dispute they will issue you the final demand which must be paid within 60 days or interest will accrue. If you are still in disagreement with Medicare’s final demand amount you can request a re-determination and you would need to submit additional information Medicare that was not sent in your original request for removal of the claims. Should you have any questions please contact me.