Personal Injury Medicare Liens-They Are Not Really Liens
People who are over 65 may be entitled to Medicare. Likewise other people who are not over 65 may be receiving Medicare as part of Social Security Disability benefits. Whatever money Medicare pays out, it may have a right to get that money back. That applies where the treatment needed is a result of the fault of another. Sometimes that is referred to as a Medicare lien. Sometimes it is referred to as a Medicare super lien. There really is no lien. It is simply a right to be paid back.
U.S. law has created a system by which a person who injures you or his insurer or a no-fault or workers’ compensation carrier is considered the primary payor. Medicare becomes the secondary payor. As the secondary payor, they can demand that the primary payor make the payments. Instead what they do is they step in and make those payments where it appears that the primary payor is not going to do so. Those payments however are based upon the legal right that Medicare has to get that money back. That right is called a subrogation right.
Medicare Liens-Double Damages
If you, your attorney or anybody else involved in the process fails to honor that right, then they may be liable for double damages to the US.
As such it is important to recognize Medicare’s right and deal with Medicare.
If Medicare happens to give you bad info as to the extent of their lien you as the attorney may still be on the hook for the full amount of their claim. See https://www.justice.gov/usao-md/pr/maryland-law-firm-meyers-rodbell-rosenbaum-pa-agrees-pay-united-states-250000-settle. This matter involved a firm that DOJ said should have known the reported Medicare claim was too low. They paid the consequences.
mymedicare.gov
A good tool that became available in July of 2024 is to use the above site. You need your client’s login name and password. Once you have it, you can check on their current and historical Medicare coverage.
Personal Injury Medicare Liens-Portal
The next easiest way to deal with Medicare is through their online portal. You go to that portal and create an account. The account allows the client or the attorney to submit information. If there are bills paid by Medicare that should not have been paid as part of this injury, you can dispute that.
Dealing with the portal is relatively easy once you understand the format. The basic format is that you create an account in your name as an attorney or authorized representative. Once you have that account established, then you can go to specific client files that are maintained by Medicare. In order to get into those files you need to submit either your retainer agreement or a separate authorization signed by the client and also submit a consent form signed by the client allowing you to get into their medical information.
The protective shield that Medicare uses to make sure that only authorized people are getting this access is what they call “multi-factor authentication”. I use a voice call system where once I try to gain access to the client file, they call me and they give me a number over the phone that allows me to gain access. That is an added layer of security that Medicare has installed on the system because the phone call is only made to the number that you have authorized.
Once the case has been settled, then Medicare can tell you how much you need to pay back. This is typically in the form of a Conditional Payment Letter (CPL). A CPL should incorporate the Medicare Worksheet which calculates any reduction for attorneys’ fees, expenses and the overall amount of the settlement.
In general, Medicare will pay the same percentage of attorney’s fees and expenses as what the client has to pay. If those fees and expenses are more than 25% of the total recovery, there may be a need to submit a breakdown.
Some problems arise with settlements in regards to prescription drugs. The portal does not show the info about amounts paid for injury-related medicine. As a result it’s a bit unclear as to what your obligations are in that regard. As of the date of this posting, Medicare has not made any efforts to enforce subrogation under Part D which is the part dealing with drug benefits.
There are several other blogs on this site dealing with different types of liens:
- Personal injury liens
- Erisa liens miscellaneous
- Medicaid liens
- Erisa liens
- Other issues with Medicare
- Tricare liens
- Workers comp liens
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