Medicare Reimbursement Issue

Posted by Matthew Garretson

Question:
I settled med mal case for an elderly woman (in her 80's) in 11/07. According to my calculation, Medicare paid 60k of her bills so I retained that amount in my IOLTA and wrote to Medicare to confirm reimbursement amount. Medicare confirmed 60k. I wrote second letter to Medicare based on aproximate cause argument that client's bills would have been incurred regardless of defendant's med mal and that she should be entitled to waiver of reimbursement so . Medicare replied and lowered amount to 41k. I sent Medicare an appeal of this amount and also requested a waiver. It is my understanding that the appeal and waiver are separate. Medicare forwarded a Form SSA-632-BK requesting client to list assets, bank accounts, etc. My guess is that if client has financial hardship, Medicare would consider waiver. However, given the settlement, and client's substantial assets, she is not in financial hardship so Medicare probably won't grant waiver. Is this correct? Also, does this form apply only to the requested waiver? Do I still have the appeal pending? What happens with the appeal? Has anyone gone through this before? Any advice is appreciated.

-Ohio Attorney

Answer:
You are correct, waiver may be difficult for your client if she has substantial assets. In general, the indicators for waiver are:

• Medicare’s claim exceeds the settlement amount;
• Beneficiary sustained permanent injuries;
• There are non-covered, out-of-pocket accident related expenses;
• Beneficiary's living expenses are equal to or higher than income.

*These are just examples. Every waiver decision is made on the merits of the case.

Indicators for denial of waiver are:

• Beneficiary receives large settlement;
• Beneficiary's income exceeds ordinary living expenses;
• After repaying Medicare and allowing out-of-pocket medical costs, the beneficiary will be left with a substantial amount of the proceeds;
• Beneficiary has substantial assets.
  

I believe the form only applies to waiver and not the appeal. I hope this info helps.

-Matt Garretson

Saturday, September 06, 2008
Matt, thanks for your reply. I will not be pursuing the waiver. However, what happens to the separate appeal? Do I get a decision on this too? I don't even know what the grounds are for appeal. How does this work? Should I retain the 41k in my IOLTA or forward this to MSPRC while the appeal is pending? Any help is appreciated.


Mary Skinner, our Manager of Medicare Services, used to work within the Medicare recovery system and can provide further information regarding the appeal.
-Matt Garretson


Monday, September 08, 2008

Medicare has no criteria for appeals. However any argument/position that you present has a better chance of a favorable decision if you can provide documentation to support your position. As in your case, documentation stating that your client would have required the treatment regardless of the med mal. With that said, there are also other remedies within the MSP provision that are also available, post settlement compromise, waiver and the waiver appeal process. If you should have any other questions please give me a call. Below are the five levels of the appeal process.

There are five levels of Medicare appeals:

1. The first level appeal is called a request for reconsideration and is done by the MSPRC ( Medicare Contractor).
2. If Medicare does not change its decision, then they must send your case file to MAXIMUS Federal Services for a second level appeal, called an External Review.
3. If MAXIMUS Federal Services agrees with Medicare then you may try the third level appeal, called an Administrative Law Judge Hearing (ALJ Hearing).
4. If you are unhappy with the ALJ Hearing decision, you may ask the Medicare Appeals Council (MAC) (DAB) to review your case. This is called a DAB review; it is the fourth level appeal.
5. If the amount involved is $1180 or more, you have the right to continue your appeal by asking a Federal Court Judge to review your case. This is the fifth level appeal.

The First Level Appeal: Reconsideration
If you requested removal of claims from Medicare and were denied, you can ask Medicare to reconsider their decision. This is called an appeal or request for reconsideration.

The Second Level Appeal: External Review
If Medicare does not change its decision after your request for reconsideration they automatically sends your case file to MAXIMUS Federal Services for an External Review.

The external review by MAXIMUS Federal Services includes:

1. MAXIMUS Federal Services sends a letter telling you that they have your case file.
2. MAXIMUS Federal Services carefully reviews:
   -Medicare rules
   -all the information in your case file, and
   -any additional information that you provide
3. MAXIMUS Federal Services makes a decision in:
   -72 hours, or up to 17 days in certain cases, for an expedited (fast) review
   -30 to 60 days for decision of the appeal
4. MAXIMUS Federal Services sends you a letter with the decision.
   -If MAXIMUS Federal Services disagrees with Medicare and overturns their denial then MAXIMUS Federal Services will send a letter to you and a letter to Medicare telling them to correct their file. If MAXIMUS Federal Services agrees with Medicare (upholds the denial), they will a letter advising you that you can appeal their decision and s send you a letter will tell you what you can do. If you want to appeal this decision, you can ask for the third level appeal, an ALJ Hearing.
   

The Third Level Appeal: ALJ Hearing
Only allowed in cases where more than $120 is in dispute. To Request an ALJ Hearing ( Administrative Law Judge) the request must be sent to:
MAXIMUS Federal Services Eastgate Square 50 Square Drive - Suite 210 Victor, NY 14564

1. The Office of Medicare Hearings and Appeals will schedule your hearing, and will tell you the time and place of the hearing.
2. You participate in the hearing and give information about your case. Medicare may also have someone at the hearing to give information.
3. The ALJ makes a decision based on your case file and the information given at the hearing.
4. The ALJ sends the written decision to you, your health plan, and to MAXIMUS Federal Services.
5. If the ALJ agrees with you, then MAXIMUS Federal Services will send a letter advising all parties of their decision
   

The Fourth Level Appeal: Medicare Appeals Council (MAC) Review
If you are unhappy with the decision made by the ALJ, you may be able to ask for Medicare Appeals Council (MAC) review of your case. This board is part of the federal department that runs the Medicare program.

The Fifth Level Appeal: Federal Court
If you are unhappy with the decision made by the Medicare Appeals Council (MAC), you may be able to take your case to a federal court. The dollar value of your medical care must be at least $1180 to go to a federal court.

-Mary Skinner