It is difficult to quarrel with the concept that all Americans should have access to affordable health care, though we might disagree on how we accomplish that goal.

It is difficult to quarrel with the concept that all Americans should have access to affordable health care. We might disagree on how we accomplish that goal, and certainly a large majority of those who voted in Missouri in August on Proposition C expressed their disapproval of any requirement that a citizen must have health insurance. It is one thing to allow access to health care. It is another to require that the person obtain health insurance.

I have had private health insurance my entire adult life, but since I am now a few years away from qualifying for Medicare, the prospect of having Medicare provide my health care is enticing. I don’t hear many people who are on Medicare fussing over the benefits afforded to them by this form of federal health insurance. They might complain about the cost of the part B coverage for physician care, or about the drug benefits, or lack thereof, but seldom do I hear senior citizens complain because they have access to health care that is an entitlement to them.

I must confess that I have some issues with Medicare that have nothing to do with the quality of health care provided through Medicare coverage.

I deal with Medicare issues a lot in my practice because many of my clients are on Medicare, and from what I can tell, the benefits are pretty good. Health care providers don’t like Medicare much because of the huge discounts that are rendered to medical bills. Yet, from the patient’s perspective, it does not matter if the hospital or physician gets substantially less than the value of the services rendered as long as the bill is paid.

My issues with Medicare concern reimbursement of Medicare when I recover money for Medicare from liability cases pursued on behalf of my clients. Under federal law, if the patient is injured through the fault of another, whether it is through an automobile accident, malpractice, or a slip and fall because of a dangerous condition at a business, Medicare is entitled to be reimbursed from any recovery the injured party obtains. The payer of any recovery is called a “third party” and the laws are very clear now that the liable third party, the attorney for the injured party and the injured party have a legal responsibility to make sure Medicare is repaid. If that responsibility is not fulfilled, all involved can be held responsible for substantial penalties.  

At one time, the law was different as it only provided that the injured party had a responsibility to repay Medicare, but apparently lawyers and liability insurance companies were not taking adequate measures to make sure that Medicare was repaid, so the law was changed with some pretty sharp teeth placed in it.

Another feature of the Medicare reimbursement law has changed, but there is so much uncertainty about this change that no one, including Medicare knows how to handle it.

Under the old law, once the case was settled, Medicare was repaid for the benefits it extended and everyone went along their merry way.  The law has always provided that Medicare had to pay its proportionate share of attorneys fees and expenses incurred by the injured party, so that if the injured party hired a lawyer to help obtain compensation for the injuries and coincidentally helped recover Medicare’s money, Medicare has to pay its fair share of the attorneys fees and expenses. There is a formula that is applied and frankly it is fair.

However, under the old law, if the injured party continues to need health care in the future as a result of the injuries, Medicare would go ahead and pay for the future health care without any expectation of reimbursement since the case had settled and it had been repaid. In most cases, this is not an issue, but in some cases it can be a major issue.

Now, the law has changed so that Medicare is requiring that money be set aside for future medical care to protect Medicare. This is called a “set aside trust” and Medicare will now insist that such a trust be established if future care is contemplated. The only problem with this concept is that Medicare has not produced any guidelines for setting aside money, which creates horrible uncertainty when a case is settled. The liability insurers are insisting on protection on this issue and so what happens is that the liability insurer requires some written verification from Medicare that it has been reimbursed for what has been paid thus far, and protection for possible future care.

Thus, if a health care provider states that future care is going to be required for treatment of the injuries, we must now wait for Medicare to tell us how much money to set aside. This could take months or longer.

Under the current law, once you announce to Medicare that a case is settled, provide the details of settlement and the attorneys’ fee arrangement to Medicare, it must provide a statement of what must be reimbursed within 60 days. However, there is no such requirement on the set aside trust issue, and so a case could be settled and everyone waits for Medicare to tell you how much to set aside for the future.

I am sorry, but I just don’t trust the government, and based on personal experiences I have had with Medicare on other cases that I will share in my next column in two weeks, I have good reason to be distrustful. Maybe Medicare will work all of this out, but right now I have huge doubts and my clients will be the ones who suffer. My clients who have no quarrel with the quality of health care and the benefits that provide payment of their bills will now have huge complaints.

But to whom do you complain? If you know, tell me because I want to start complaining – now.