How to Deal with Medicare Liens in Personal Injury Cases
If you have any experience in personal injury cases, chances are you groan with frustration at even the thought of handling a case involving a Medicare lien. And with good reason! In my experience, getting information out of Medicare is like pulling teeth, to put it mildly.
But if you start early, and remain organized, you can prevent Medicare from holding up your settlement check at the end of your case, which can happen if you do not have Medicare's final demand when it's time for the adjuster to issue the settlement check.
Step One: Obtain Medicare Information From Client at Initial Meeting and Warn Them that Medicare Liens are Difficult and Can Cause Delays throughout Their Case
In addition to finding out information about any type of lien at your first meeting with the client, be sure to find out if the client receives Medicare benefits. If so, make a copy of their Medicare card, and be sure to copy both sides.
Ask the client if they have received any correspondence from Medicare; be sure to make copies of those as well. These may be in the form of Explanation of Benefits statements, bills, or letters.
Most importantly, set your client's expectations. As you will see, Medicare does not move quickly in providing information at any step of this process. Warning your client at the outset will prevent many anxious calls from your client at the end of your case when they are wondering why they have not gotten their settlement money.
Step Two: Contact Medicare's Coordination of Benefits Contractor (COBC) RIGHT AWAY
Run, don't walk, to send in your initial notification to Medicare. It takes FOREVER to get a response from the black hole that is known as Medicare's Coordination of Benefits Contractor. The COBC collects the information for Medicare and opens the file with the Medicare Secondary Payor Recovery Center (MSPRC).
The information that you need to provide is as follows:
1. Beneficiary Information: Name, Health Insurance Claim Number (HICN), Gender and Date of Birth, Address and Phone number
2. Case Information: Date of injury/accident, date of first exposure, ingestion or, implant, Description of alleged injury or illness or harm, Type of Claim (Liability insurance, No-Fault insurance, Workers' Compensation), Insurer/Workers' Compensation name and Address
3. Representative Information: Representative/attorney name, Law Firm name if the representative is an attorney, Address and Phone number
4. Signed Consent to Release and Proof of Representation
The COBC contact information is:
BCRC Call Center:
Hours of Operation: Monday - Friday 8am-8pm (ET)
MEDICARE - Coordination of Benefits
P.O. Box 138897
Oklahoma City, OK 73113-8897
Step Three: Look for the Rights and Responsibility Letter from the Medicare Secondary Payor Recovery Center (MSPRC)
Once Medicare's COBC opens the case, you should receive a Rights and Responsibilities letter from the Medicare Secondary Payor Recovery Center (MSPRC). The Rights and Responsibilities letter will outline the process for you. They should also send you a cover page to be used with all correspondence. Use this with all future correspondence with MSPRC – documents get lost all the time there; using the cover sheet lessen the chances of that happening.
Step Four: Submit Proof of Representation to MSPRC
Make sure that you send Proof of Representation to the MSPRC. The MSPRC will take no action on your case without it, and they will not let you know that they are missing anything, which, as you can imagine, is super helpful. But not.
Attorneys may send a copy of their retainer agreement if:
a. The retainer agreement is on attorney letterhead or accompanied by a cover note on letterhead,
b. The retainer agreement is signed by the beneficiary,
c. The beneficiary's name and Medicare Health Insurance Claim
d. d. Number (HICN) are printed at the top of the form (this may be added after the retainer agreement is signed), and
e. The retainer agreement is signed or countersigned and dated by the attorney.
If you do not wish to disclose your retainer agreement, Medicare has
indicated that attorneys may also provide the same proof of representation as
non-attorneys if they wish to do so. This requires providing:
a. Your client's name as shown on his/her Medicare card,
b. A copy of your client's Medicare Health Insurance Claim Number (HICN)(the number on the Medicare card),
c. A writing that reflects that the client has appointed you as his/her representative and the following information for the representative: name, type of representative, firm/company name, address, telephone number, and
d. Said writing must be signed and dated by the client and by the attorney.
Medicare also provides sample language to use for your Proof of Representation: http://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Coordination-of-Benefits-and-Recovery-Overview/Non-Group-Health-Plan-Recovery/Downloads/ProofofRepresentation.pdf
Proof of Representation should be sent to:
P.O. Box 138832
Oklahoma City, OK 73113
Fax: (405) 869-3309
Step 5: You Should Receive a Conditional Payment Letter Within 65 days
The MSPRC will search for claims paid related to the case, and then issue a Conditional Payment Letter and Payment Summary Form that will list all the payments that Medicare believes are related to your case, and for which they will seek reimbursement.
If you do not receive the Conditional Payment Letter after 65 days of receiving the Rights and Responsibilities letter, be sure to call MSPRC at (866) 677-7220.
Step 6: Review the Conditional Payment Letter for Unrelated Claims
More than once I have had Medicare include payments that are in no way related to my case. In fact one time, they included the same payment twice, and at $10,000 a pop, that makes a huge difference. So, review the itemization carefully for any unrelated claims.
Make sure to mark the unrelated claims with pen, either by crossing it out or by marking it with an "X." One thing that Medicare mentions nowhere on their website is that when documents are transmitted to them, for some reason, highlighting does not show up, so do not use highlighting as your means of indicating what charges are unrelated. Fax a letter back to MSPRC asking them to remove the unrelated charges, and include a copy of the itemization with the crossed out claims.
You can also self-calculate your conditional payment amount using the Payment Summary Form if you meet certain eligibility criteria. Use this form to indicate that you meet the criteria, and what you calculate to be the conditional payment amount, and send it in to MSPRC. MSPRC will respond to you in 60 days to advise if they agree or disagree with the amount you calculated.
Step 7: Monitor Your Case with MSPRC
Call MSPRC at (866) 677-7220, if you have not received the documents you are waiting for, and the time period for producing them have passed. Have other work to do though; wait times can be very long. MSPRC will not notify you if they are missing something, or if they have inadvertently misplaced what you sent. Stay on top them, and bug them until you get what you need.
MSPRC has also just started a Self-Service option that you can choose when you call, where you can get conditional payment and demand amounts, as well as request updated Conditional payments amounts. No guarantee that this information will be make the process go faster but it is there.
You can also go to https://www.mymedicare.gov/ to check on the status of your case. You will need to set up an account for your client to do so.
New MSPRC Online Tool for Managing Your Case
MSPRC has also just launched the Medicare Secondary Payor Recovery Portal: https://www.cob.cms.hhs.gov/MSPRP/
They have indicated that attorneys will be able to access information about
the case, and soon will be able to do the following:
1. Submit Proof of Representation or Consent to Release documentation
2. Request conditional payment information
3. Dispute claims included in a conditional payment letter
4. Submit case settlement information
Step 8: Notify Medicare of Settlement As Soon As Possible
Once the case settles, notify MSPRC immediately. The information that you
will need to provide is:
1. Date and Amount of Settlement
2. Attorneys' Fees and Costs (include copy of statement)
3. Liability Insurer Information
4. Copy of Settlement Agreement
You can also use this form provided by MSPRC: http://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Coordination-of-Benefits-and-Recovery-Overview/Non-Group-Health-Plan-Recovery/Downloads/Final_Settlement_Detail.pdf
This information will be used to generate Medicare's final demand, which will be needed before the adjuster will issue you a settlement check. Make sure not to forget any of the requested information or there will be delays in getting the Final Demand Amount. Warn your clients though, even with timely reporting of the settlement information, obtaining the Final Demand amount can take up to a month if you are lucky, and if you are not, well, then buckle in, because it could be a very long while.
Step 9: Do Not Let the Adjuster Bully You into Putting Medicare on Your Settlement Check or Holding Up the Entire Settlement Amount While You Wait for the Final Demand
Should the Final Demand be slow in coming (and oh it will, in many of your cases), do not let this hold up getting your client some money in the meantime.
Adjusters may suggest that they put Medicare on the check. This is about the most ridiculous thing I have ever heard. There is no way you are getting Medicare to endorse that check, and sending it in to them to do so is essentially the equivalent of flushing it down the toilet. Tell the adjuster, thank you but no, we are going to respectfully decline that option. You can also mention that several courts have issued opinions stating that it is not required for Medicare to be named on the check. See for example, Tomlinson v. Landers, (M.D. Fla. April 24, 2009) and Hearn v. Dollar Rent A Car, (Ga. Ct. App. March 26, 2012).
Without fail, adjusters will tell you that they cannot issue the settlement check until they have the Final Demand amount. My response is to send them a letter that includes the following statement:
"We do not want the issue of reimbursement claims to hold up getting our clients their portion of the settlement funds, and we do not believe it would be appropriate to do so.
Therefore, please issue the settlement check to our office as soon as possible. If necessary, we would be willing to include in our settlement agreement that we would agree to hold in trust, a specified amount to cover any possible claims for reimbursement."
Step 10: Upon Receipt of the Final Demand, Pay Medicare, Appeal or Request a Waiver
Medicare's final demand amount will account for the reduction for a share of attorneys' fees and costs. Send them a check for amount requested within 60 days, or interest will accrue.
If you disagree with the final demand amount, you can appeal or request a waiver. You must do so in writing. Upon receipt of the request, MSPRC will ask you to fill out a waiver form: http://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Coordination-of-Benefits-and-Recovery-Overview/Downloads/SSA-632-Request-for-Waiver.pdf
Waivers and appeals are rarely granted so prepare yourself and your client that the amount they are going to be reimbursing Medicare is likely the amount in the Final Demand. Additionally, interest can accrue pending the waiver and appeal process so it is best to pay the amount demanded while you pursue the waiver and/or appeal.
Medicare can be a big headache, but if you set your client's expectations early, and start the process with Medicare as soon as you open the case, hopefully your headaches will be kept to a minimum.
For further discussion on liens, please see:
1. The FindLaw Guide to Negotiating Liens in Personal Injury Cases
2. Negotiating Tips for Hospital Liens in Personal Injury Cases
3. Negotiating Tips for "Med Pay" Claims for Reimbursement
4. Tips for Negotiating ERISA Liens in Personal Injury Cases
5. 7 Steps to Approaching Lien Claims in Personal Injury Cases
6. How to Deal with Medicare Liens in Personal Injury Cases
7. Negotiating Tips for Health Insurance Liens in Personal Injury Cases
8. What US Airways v. McCutchen Means for Your Personal Injury Cases
9. State Medicaid Liens Limited by US Supreme Court in Wos v. E.M.A.
Anne O'Donnell is a recovering litigator who is now currently a Senior Writer for legal professional content at Findlaw.com. She practiced for 10 years in civil litigation in San Francisco.