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Given my law practice, which is based 100% on representing victims of negligence, finalizing settlements are a part of my everyday practice. In the past, Medicare liens have become a big problem in my resolution of claims for clients. In very generalized terms, if someone has Medicare coverage (or is expected to shortly after settlement), and Medicare has paid medical bills related to the injury (or is expected to make payments in the future), Medicare has a right to reimbursement if the injured person recovers money from the at-fault person or entity. It isn't that I think Medicare doesn't have a right to be reimbursed. It actually makes sense to me – why should Medicare/the government have to pay the medical bills for injuries that were directly caused by a careless driver who blew a stop sign or by a manufacturer who didn't properly test its product before placing it in stores?

But no matter how much I believe in the reasoning, getting the information from Medicare to resolve the claim in a timely matter is very difficult, if not damn near impossible. I have contacted Medicare prior to settlement and asked for the amount due and it has taken over 6 months, one time, 8 months, to get the requested information. Can you imagine being victimized by a careless doctor who didn't get enough sleep the night before and messed up your surgery, or being hit by a tractor trailer – surviving, incurring medical bills, resolving your lawsuit, and then waiting 8 months to get your money? Many of my clients have outstanding medical bills that Medicare didn't pay or that the medical providers didn't submit to Medicare (a whole other topic). So when I settle his/her claim, it is important to get the money promptly so these bills can be paid, not sent to collections, and the client can get closure.

Previously, Medicare made speedy settlements virtually impossible. It had gotten so bad that I became aware of attorneys in Illinois and attorneys in Missouri declining to represent people who were on Medicare, or soon would be, because the attorney knew how difficult Medicare could be. Luckily, President Obama just made it easier on all personal injury attorneys nationwide, and their personal injury clients, by signing the SMART Act into law, a bipartisan Medicare law. According to the American Association for Justice, this new piece of legislation requires:

  • Require CMS to create and monitor a secure web portal to access the plaintiffs' claims and reimbursement amounts in a timely fashion.

    • CMS must upload care payments they disperse within 15 days with the required information about the payment.
  • Organize and therefore, speed up, the process of obtaining reimbursement amounts.

    • Medicare beneficiaries must notify CMS they are anticipating a settlement no more than 120 days beforehand.
    • CMS then has 65 days to ensure the web portal is up-to-date, but may request an additional 30 days, if needed.
    • Reimbursement amounts are reliable if downloaded from the web portal within three days of settlement.
  • Notice an error? There is a remedy for that.

    • Medicare beneficiaries can provide documentation for discrepancies on the web portal to CMS.
    • CMS has 11 days to respond to discrepancies.
    • If CMS does not respond in 11 days, the amount calculated by the beneficiary is the correct amount.
    • An additional appeal process must be established by CMS for reimbursements it attempts to collect from insurance plans.
  • Create a threshold for collecting any payment amounts by CMS that are below the cost it incurs to collect an average claim.
  • Readjust the penalty for reporting errors by insurers based on the violation.
  • Ensure greater privacy for beneficiaries by no longer requiring use of full social security or health id claim numbers.
  • Create a three year limit for CMS to seek any repayments beginning from when they were informed of an anticipated settlement.

I know these changes/requirements will be welcomed by personal injury attorneys at our office and nationwide! Now, we can see a light at the end of the table when a potential client walks into our office who is using Medicare.

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