Wednesday, October 27, 2010

What Is Medicare's Right To Recovery When Involving MICRA

I understand that MICRA did away with the subrogation rights of private health insurers, but does Medicare maintain a right of recovery in the event of a settlement of a medical malpractice case for bills that it has paid.

California Attorney

Thank you for the question. The answer to your question is that yes Medicare maintains its right to recovery despite MICRA. First, MICRA is a state law. Second, arguably payments made by Medicare fall outside the scope of collateral payments described in MICRA.

I would also caution not to disregard all private health insurer claims in California. It is important to remember that a self-funded ERISA would contest such an argument based on the fact that a self-funded ERISA is deemed not to be insurance. See FMC Corp. v. Holiday, 498 US 52 (1990). Thus this state law would not be saved from preemption. However, I would completely agree that an individual insurance policy or an insured ERISA plan would be barred from seeking recovery under MICRA.

Michael D. Russell, Esq.