Potential clients come to our office seeking information about different types of injury claims – primarily medical malpractice cases, which often sadly include a catastrophic injury or death of a loved one. After listening to the family or injured victim tell their story and taking pages upon pages of detailed notes, we then start to ask questions. One of the first questions we ask is: ”Are you on Medicare, Medicaid, or do you receive any other type of government benefits?” Sound shallow or irrelevant to the conversation? We can assure you that question is asked with the potential client’s best interests in mind. It also allows our attorneys to offer some initial guidance and cautions to the prospective client – all before putting pen to paper to sign our contract for representation (the contingent fee agreement).
There are many rules, regulations, and procedures that are in place for individuals (we’ll call them ‘claimants’ – although I am not crazy about that word, it will make it easier to remember for purposes of this article) who are making what are called ‘third-party claims’ (pursuing an insurance company, person, or other entity for compensation) and have Medicaid or Medicare coverage. In addition to issues for those receiving Medicare or Medicaid benefits come concerns for claimants who are receiving benefits through Supplemental Security Income (SSI) or Social Security Disability (SSD). We could fill an entire book with all of the ramifications involved with the different types of benefits one could experience when making a third party claim. For present purposes, we will focus on what we see as the most common type of coverage that causes our ‘legal antenna’ to be activated: Medicare.
Let’s start at the end and work our way back to the beginning of a personal injury claim that involves Medicare coverage/payments. I say ‘work our way back’ because I cannot tell you how many clients have rightfully asked me the question when their case settles: “When do I get my money?” The seemingly obvious point in time is immediately after the case settles; however, that would not be correct. I call this time “the beginning of the case after the case”. Whenever an attorney represents a Medicare beneficiary and settles their case, the lawyer/law firm is required by law to hold the settlement funds in trust until Medicare is reimbursed the amount of their lien. The lien is the amount of the related medical expenses paid over the course of one ‘s injury claim by Medicare. While our lawyers take steps throughout the process to submit information to Medicare early and throughout the process to minimize the payout time delay, Medicare does not give a final lien amount for reimbursement until after a case is resolved through settlement or trial. This final lien amount usually takes quite a bit of time to obtain from Medicare and can only be obtained once the case is settled. How much time does it take? It can take months, although I have seen it (albeit rarely in present time) to take more than a year, and that was with diligent follow-up through letters and phone calls.
Why does it take so long? Well, we could write yet another entire book on that topic as well. Suffice to say that we believe Medicare has gotten better over the last few years and has really worked diligently to streamline the process. What clients need to keep in mind (and we as layers do too for that matter) is that Medicare is really given a daunting task: to file, document, maintain, itemize, and finalize files on every claimant in the Unites States making an injury claim where Medicare is involved, I mean, think about it. That’s A LOT of people and a lot of work. On top of all of this, you have the appeals process and also have to factor in what a difficult job it is for Medicare to have to ‘figure out’ what treatment paid by Medicare is causally related to the injury claim. Heck, even the doctors cannot do this sometimes. How is a claims representative without a medical license sitting in an office somewhere a thousand miles away from the treatment site supposed to do this?! … but I digress.
Our lawyers always try to have our prospective clients understand that when their claim involves Medicare is involved, there is going to be a delay – plain and simple; it is the nature of the beast. What we sometimes have to explain to prospective clients is that it will sometimes not be feasible for a law firm to represent them in a personal injury claim where there is a substantial Medicare lien and the claimant is in a jurisdiction (such as Maryland, Virginia and a host of other jurisdicitons) where there is a cap on the amount of monetary damages one can receive. A good illustration of this scenario is featured in a prior blog by Brian Nash. Check it out.
Thinking about ignoring or not paying Medicare back? Not a good idea. There are serious civil penalties for not reimbursing Medicare the amount that they are owed. These penalties extend to the claimants and the lawyers who represent them. Again, we cannot stress the importance of being 100% in compliance with the Medicare reporting and reimbursement system that is in place. Medicare also has a system in place for those who think that the law does not apply to them. You do NOT want to be in that group of people.
So, moving back from the end to the beginning of a claim where Medicare is involved, don’t be surprised if a lawyer tells you that you have a case, or may have a case, but elects not to take your claim. At our office, we look at a variety of factors when determining whether or not to invest the tens of thousands (and sometimes hundreds of thousands) of dollars needed to vigorously pursue a claim. The reality of a Medicare lien can substantially affect what you can receive in net recovery – the amount you receive after fees, costs and lien reimbursement. As lawyers, we have to look at both the best and worst case scenarios when it comes to the probabilities of recovery, as well as everything in between, when determining which cases are feasible to pursue. Are there claimants out there who have legitimate cases that come to us that we regrettably have to decline? Absolutely. Frankly, that is one of the hardest decisions we have to make at times.
If you are someone who believes you have a claim for injuries caused by the negligence of another person and you are receiving benefits through SSI, Medicare, SSD or Medicaid, you simply must discuss with the lawyer with whom you are meeting what this means to you and your potential recovery. Since you can not ignore it, you should deal with it early in the process.
Edited by: Brian Nash