Medicare Secondary Payer Compliance: How to Mitigate Exposure in the Medicare Beneficiary Personal Injury Case

Complying with the Medicare Secondary Payer ( MSP ) laws and regulations is a difficult task for practitioners (plaintiffs and defense attorneys), claims managers and adjusters. The handling of a personal injury lawsuit has changed significantly with the passage of the Medicare and Medicaid SCHIP Extension Act, and this book not only traces the origins of the MSP Statute but provides bests practices for navigating the maze of contingent liabilities created by the Act. Enacted on December 5, 1980, the "Medicare Secondary Payer Act" (Act) was without consequence for non-compliance until recently - most notably, when the electronic reporting requirements found in the Medicare & Medicaid SCHIP Extension Act ( MMSEA ) in 2007 became law. A game changer for the liability industry made up of lawyers, claimants, defendants (self insureds), insurance carriers, health care providers, third party administrators and other related parties, there can be no business as usual when resolving the liability case today that involves a Medicare beneficiary. Medicare Secondary Payer Compliance is designed to serve as a resource guide for anyone interested in learning where the potential pitfalls of the Act lay. The authors, highly versed in the complexities and nuisances associated with the Act, provide commentary and analysis based on the law as it is presently known and suggest approaches to consider when attempting to finalize the liability case. Mitigation of exposure to Medicare takes careful planning that must start upon receipt of the case and not after the parties have reached an agreement on a settlement figure. In the past, defendants customarily assigned responsibility for Medicare reimbursement to the plaintiff and his or her legal representative as an afterthought when resolving the case. Protection for the defendant usually came in the form of an indemnity provision added to a general release. Regrettably, such hasty practices today would offer little in the way of protection from Medicare and in many instances increase exposure to the defendant. Likewise, a plaintiff or his representative would be hesitant today to take on such a responsibility alone when the law equally obligates the defendant and his insurance carrier as well. This is especially true when the amount owed to Medicare is in flux. The Act has been a real game changer for those involved in a liability case where the plaintiff is a Medicare beneficiary. Insurance carriers and self insureds responsible for paying losses must report certain required information about the liability case electronically to Medicare. Before this law, Medicare did not have the perfect knowledge, of all settlements, awards, and judgments involving Medicare beneficiary tort settlements. This new information will be used now to improve collections from the parties by Medicare for items and services it may have paid related to the injury as well as to suspend payment of future benefits. Perfect knowledge on the part of the government will create consternation for the liability industry and a perfect storm is brewing. The ability to promptly deliver the benefits of a settlement, award and judgment to a Medicare beneficiary will be delayed as practitioners today must now take certain steps to notify the government and track the amounts that Medicare has paid as well as resolve it before distribution of the proceeds. How this occurs is not clearly defined because everyone has equal responsibility to Medicare. The only solution is for the parties to cooperate, but it is a difficult challenge given the traditional adversarial relationship of the parties. Medicare Secondary Payer Compliance is a "must" start to finish guide and commentary for anyone involved in a liability case where the Medicare Secondary Payer Act comes into play. The new requirements of the Act will not be eas