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Examiner
  • Bob Buckley: The frustrations of dealing with Medicare reimbursement

  • I am approaching my 33rd anniversary as a lawyer. Time flies when you are having fun. The past 33 years have been most enjoyable. Only a few clients have been less than enjoyable, but for the most part I have been truly blessed with great clients. Yet there are other frustrations.

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  • I am approaching my 33rd anniversary as a lawyer. Time flies when you are having fun. The past 33 years have been most enjoyable. Only a few clients have been less than enjoyable, but for the most part I have been truly blessed with great clients. Yet there are other frustrations.
    I have previously written about the frustration of dealing with Medicare on reimbursement issues in personal injury cases. A federal law provides that Medicare is not obligated to make payments of medical bills incurred as the result of the negligence of others whether it is by health care providers, motorists, or business owners. The law provides that Medicare can make conditional payments of medical bills in such cases if the beneficiary agrees to reimburse Medicare out of any recovery. The law is fair as it provides that Medicare must pay its proportionate share of attorneys fees and expenses in such situations so that if the injured Medicare beneficiary recovers money from a third party responsible for his or her injuries and employs an attorney, Medicare has to share in the costs.
    The frustration with Medicare is dealing with its bureaucracy. It has become much better and information is now more readily available on the computer. However, vast improvements can still be made in streamlining the process. After all, we are trying to reimburse the federal government money it has paid out. One would think that the government would make that process very easy.
    The other major frustration in my practice is a similar problem. It involves reimbursing self-insured plans. Under Missouri law, if you are insured by a private health insurer, the health insurer is not entitled to recover any of the benefits paid in the event a third party is responsible. The thought process behind this law is twofold. First of all, the responsible party should pay the medical bills even though the injured person has health insurance because the responsible party should not be able to benefit from a collateral source that the injured party paid for or by employer-provided health insurance. Secondly, the health insurer should not benefit from the pursuit of a personal injury claim since the premiums paid by the injured party or the employer are based on no reimbursement.
    However, if the employer is self-insured, a federal law called the Employees Retirement Income Security Act supersedes Missouri law and if the self-insured health plan includes a provision for reimbursement from any third party recovery, the plan provisions control over state law. Most, if not all, such ERISA based plans do not have any provision for consideration of attorney’s fees and provide for 100 percent reimbursement of all benefits paid even though the health plan would recover nothing if the injured party decided not to pursue a claim. Thus, some health plans insist on 100 percent reimbursement. Many will compromise the amount of reimbursement although some still insist on full recovery.
    Page 2 of 2 - Last year I had a case involving a self-insured plan and the recovery of the injured party was limited by the limited coverage of the person responsible for a car wreck. The employee had worked for the employer for over fifteen years and as a result of the injuries suffered, the employee was not able to return to work and went on social security disability earning about 40 percent of the pay he was receiving prior to the wreck. An appeal was made to the employer to show some compassion. None was extended. Don’t let the door hit you in the back side as you leave us you loyal employee!
    This unfairness is subject to challenge in the United States Supreme Court. The Supreme Court is considering a case involving a US Airways employee who was severely injured in a car wreck. The appeal is from a ruling of the 3rd Circuit Court of Appeals which held that equitable principles apply to ERISA claims to prevent plans from being unjustly enriched. The principle behind unjust enrichment is that the employer is receiving the benefit of an employee pursuing an injury claim that will provide for reimbursement to the employer, which is unjust if the employer receives all of the money paid out for bills and does not share in the cost of recovering the money. The court is being asked to essentially rewrite the plan to prevent this unjust enrichment of the employer.
    The case was argued last November and should be decided this summer. Hopefully, the Supreme Court will correct this injustice and impose an attorney’s fee on the employer’s recovery. If so, I will have one less frustration.
    Bob Buckley is an attorney in Independence. Email him at bbuckley@wagblaw.com
     
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