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Medicare’s Right of Reimbursement in Georgia Personal Injury Settlement Proceeds


The landscape related to Medicare and personal injury settlements has changed. 42 U.S.C. §1395y(b)(2) and § 1862(b)(2)(A) of the Social Security Act, provide that Medicare may not pay for a beneficiary’s medical expenses when payment “has been made or can reasonably be expected to be made under a workers’ compensation plan, an automobile or liability insurance policy or plan (including a self-insured plan), or under no-fault insurance.” If responsibility for the medical expenses incurred is in dispute and other insurance will not pay promptly, the provider, physician, or other supplier may bill Medicare as the primary payer. If the item or service is reimbursable under Medicare rules, Medicare may pay conditionally, subject to later recovery if there is a subsequent settlement, judgment, award, or other payment. In situations such as this, the beneficiary may choose to hire an attorney to help them recover damages. Under 42 U.S.C. §1395y(b)(2(B)(ii) and §1862(b)(2)(B)(ii) of the Act and 42 C.F.R. 411.24(e) & (g), Medicare may recover from a primary plan or any entity, including a beneficiary, provider, supplier, physician, attorney, state agency or private insurer that has received a primary payment.

If you are a personal injury attorney and you represent a medicare beneficiary (or a person who may be eligible for medicare benefits within 30 months of the resolution of your case), one of your first steps in the representation of that client should be to contact Medicare and request a conditional payment letter. Since the lead time in receiving a response from Medicare can be quite long, it is best to initiate the process early in your representation so that getting a Medicare Conditional Payment Letter will not hold up resolution of the case. Notice of representation requires sending a copy of the fully executed retainer agreement to Medicare along with a letter explaining your case and the injuries that your client is complaining of in the lawsuit. 

Conditional Payment Information

Once Medicare is aware of the existence of a case, it begins identifying payments that it claims that Medicare has made conditionally and that are related to the case. Then, Medicare will issue a conditional payment letter with detailed claim information to the beneficiary and his or her attorney. This letter does not provide a final conditional payment amount as Medicare might make additional conditional payments while the beneficiary’s claim is pending. Medicare does not send a final demand letter until there is a settlement, judgment, award, or other payment.  If there is a significant delay between the initial notification to Medicare and resolution of the case, the Plaintiff’s lawyer can request an “interim conditional payment letter” which lists the related claims paid, to date. 

Reimbursing Medicare

Once the case is resolved and the attorney for the Plaintiff notifies Medicare of the resolution and requests a final payment letter, Medicare issues a formal demand letter advising the Medicare beneficiary and the plaintiff’s counsel of the amount that Medicare is demanding as payment for medical bills that Medicare claims are related to the personal injury case. This letter includes: 1) a summary of conditional payments made by Medicare; 2) the total demand amount; and 3) information on applicable waiver and administrative appeal rights.  Often, it is necessary for the Plaintiff’s attorney to appeal Medicare Final Demand letter amounts because there are items of care and treatment in the Final Demand from Medicare which are not related to the lawsuit. Once a Final Demand is received from Medicare, it will contain instruction on how to pay off Medicare from the settlement proceeds. These instructions must be followed verbatim in order to properly comply with the Medicare case resolution requirements. Follow these steps to avoid delays in the resolution of your cases.

Robert J. Fleming has been handling wrongful death cases, dental malpractice, bus accidents, car accident cases and premises injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 20 years. He practices in and around the Atlanta, Georgia area including handling lawsuits in Fulton, DeKalb, Clayton, Gwinnett, Cobb and other counties and nearby cities including Alpharetta, Austell, Avondale Estates, Chamblee, College Park, Conyers, Duluth, Decatur, Doraville, Hapeville, Johns Creek, Jonesboro, Lawrenceville, Norcross, Peachtree City, Riverdale, Roswell, Sandy Springs, Stone Mountain, and Smyrna. If you have been seriously injured and would like discuss your case in complete confidence, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.

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