41 Trial Lawyer • Winter 2023 By Tim Nay OTLA Guardian Vern, age 67, and Linda, age 62, were severely injured when a driver ran a red light and hit their new Kia head on. Vern required emergency surgery to repair his broken femur and arm, then three weeks of in-patient rehabilitation before returning home. He needed 24/7 assistance with all activities of daily living (ADL) for three months while at home. Linda sustained a catastrophic traumatic brain injury (TBI), broken ribs, arm and leg. The TBI resulted in speech problems, severe cognitive decline, long and short-term memory deficits and severely impaired executive function. Her cognitive function never improved. She could not live independently and Vern was unable to provide 24/7 care, even Tim Nay though he wanted Linda at home. Because Vern was a Medicare enrollee, his surgery and the three weeks of inpatient care were covered by Medicare and his Medicare Supplement policy. But the Medicare Secondary Payer Act (MSPA) made payment for his injury medicals on the “condition” that upon receiving an injury settlement, Medicare would be repaid. Settlement was reached three years after the collision. The driver’s policy limits of $750,000 were split equally between Vern and Linda. Their attorney reported Vern’s settlement to Medicare by submitting a “Final Settlement Detail Document” to the Centers for Medicare and Medicaid Services, Benefits Coordination and Recovery Center. Medicare made a final demand for $95,000. This amount reflected a reduction for attorney fees and costs pursuant to 42 CFR 411.37(c.)The reduction is not an automatic one third reduction but is based upon a formula in the regulation. Vern promptly repaid $95,000 to Medicare. The couple didn’t have separate Medicare Part D Prescription Drug plans, that would have required repayment for drugs from their net proceeds. Under the MSPA, Medicare Part D plans are statutorily entitled to payback for injury related prescription medications, similar to Medicare and Medicare Advantage plans. Private cause of action Injury litigators should rule out presettlement injury reimbursement from traditional Medicare A&B, Medicare Supplement policies, Medicare Advantage plans and Medicare Part D Prescription drug plans. Failure to pay these carriers within 60 days of the demand(s) may trigger a “private cause of action” by an insurer for double damages pursuant to 42 USC 1395y(b)(3)(A.) Injury litigators and their clients are liable. Medicare didn’t cover the ADL care Vern required at home. Medicare doesn’t cover ADL care at home or in a care facility. Same for all major medical health insurers. Vern paid privately, spending down $45,000. In addition to repaying Medicare for his pre-settlement surgery and hospital stay, the MSPA required Vern to protect Medicare and Medicaid Issues In Seniors’ Cases See Medicare and Medicaid p 42
RkJQdWJsaXNoZXIy MTY1NDIzOQ==