Medicare Can Recover Payment for Any Alleged Injuries
Anderson v. Burwell gives us another example of Medicare’s powerful abilities to recover Medicare liens (or more accurately, Medicare Conditional Payments). The U.S. District Court for the Eastern District of Michigan, Southern Division, decided on March 3, 2016 that any care claimed as related to negligence is recoverable by Medicare. That recoverability is not earth-shattering, but, the details provide an important lesson.
In Anderson, the plaintiff’s attorneys argued to Medicare that Medicare would have paid for her treatment regardless of the negligence that occurred. The argument relied on the underlying case being a “failure to treat” case.
While the underlying negligence occurred in 2006, the settlement and various Medicare administrative appeals took years to complete. The first glimpse into an actual explanation occurred at the third level of appeal to an Administrative Law Judge in 2011. That ALJ noted that it is likely Medicare would have provided coverage for Ms. Anderson’s conditions, but those likely payments do not obligate Medicare to pay where another payer is primarily liable (the defendant).
We believe this argument could have succeeded if explained differently by Ms. Anderson’s attorneys in her Medicare appeals. The argument appears to have not included a medical explanation as to why the treatment would have occurred regardless of negligence. At the fourth level appeal, the Medicare Appeals Council essentially stated that Ms. Anderson’s family would have a windfall if Medicare could not recover. Yet, the MAC fails to note it is receiving a windfall because negligence occurred. It would have paid for treatment – the very same treatment Ms. Anderson received post-negligence – but it apparently does not have to because negligence occurs. This argument flies in the face of the Medicare Secondary Payer statute which states that a plaintiff:
[S]hall reimburse the appropriate Trust Fund for any payment made by the Secretary under this subchapter with respect to an item or service if it is demonstrated that such primary plan has or had a responsibility to make payment with respect to such item or service.
If we were in charge of this appeal, we would suggest a discussion that explains the defense (the “primary plan”) did not have responsibility to make these payments. This argument is complex and requires discussion of U.S. v. Hadden and its progeny of cases – nonetheless, it goes deeper than the apparent “Medicare would have paid anyway” argument.” There is a lot more to the Anderson case. This relatedness argument is just the most interesting part for us!
Reducing Medicare liens can be difficult and failure to understand the process can lead to liens much larger than your settlement can handle. For that reason, please reach out to a lien resolution expert prior to resolving your liens.
Or, the simplest way to reduce your lien-related liability is to utilize a lien resolution service. For help with Medicare Liens, Medicare Advantage Plan, and any other Health Insurance Lien , please contact us at (844) Med Lien.
Ryan Weiner
Chief Operating Officer
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