Bosserman Pontificates

Medicare Set-Aside Blog on November 3, 2009 | Posted by

 


CMS employee Tom Bosserman of the San Francisco regional office, prolific clarifier of opaque Health and Human Services policy, had this to say regarding Medicare’s recovery rights in a wrongful death action.


 


“If the beneficiary’s Estate pursues a Liability insurance settlement,


then Medicare will assert a right of recovery.  However, if the


settlement is solely for Wrongful Death, then Medicare will not pursue


recovery.


 


Wrongful Death statutes are State laws which permit a person’s survivors


to assert the claims and rights that the decedent had at the time of


death. These laws may include recovering for the deceased’s medical


expenses.  When a liability insurance payment is made pursuant to a


Wrongful Death action, Medicare may recover from the payment only if the


State statute permits recovery of these medical expenses.  Generally, if


the statute permits recovery of the deceased’s medical expenses,


Medicare may pursue its payments, even if the action fails to explicitly


request damages to cover medical expenses.  Thus, in that event, even if


the entire cause of action sets forth only the relatives and/or heirs


damages and losses, then Medicare may still recover its payments.  If a


Wrongful Death statute does not permit recovering medical damages,


Medicare has no claim to the Wrongful Death payments.


 


When State law permits a full recovery of medical damages but limits the


amount of the recovery which is payable to creditors as a result of past


medical expenses, Medicare may recover against the entire tort recovery,


up to the full amount of past Medicare payments. However, when State law


limits the amount of the past medical expenses which may be recovered


from the tortfeasor and responsible insurer, Medicare may recover only


up to that amount (or the amount of the settlement, if the settlement is


less than or equal to Medicare’s claim.)


 


Any Wrongful Death settlement agreement would have to be closely


examined to ensure that only a wrongful death claim is involved.  There


may be instances when the settlement also specifically provides for


payment of a decedent’s medical damages that would not be properly


classified as a purely Wrongful Death action, no matter how the matter


is captioned.  In such a situation, Medicare is entitled to recover its


medical expenses from the proceeds of a settlement from the defendant’s


insurer (or from any defendant who is self-insured).  Because the


Wrongful Death action joins the damage claims of the Medicare


beneficiary’s heirs with the claim for medical expenses asserted by the


beneficiary’s Estate, the plaintiff’s attorney may contend that any


settlement / judgment is intended solely to compensate the heirs.


Therefore, it is important to note that  (in the absence of a specific


Court determination of the recovery amount attributable to medical


damages)  where any portion of recovery could relate to medical


expenses, Medicare asserts its recovery rights against the entire amount


of the settlement”


 


Compliment to Tom Bosserman from the NAMSAP listserv:


 


“I love Bosserman, he is a smart guy who helps when he can and does the right thing” – Henry Krohnlein – Protocols, LLC


 


 


To profess YOUR love to Tom, email him at Bosserman, Thomas M. (CMS/WC)


 


 


Email Provided courtesy of:


 


Linda Nelson, CCM, CLCP, MSCC


Medical Management Resources, Inc.


PO Box 4818


Helena, Montana 59604


406-449-3600


Fax: 406-443-2088
www.mmrimt.com


 


 


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