One of the biggest headaches we have in our personal injury practice is dealing with Medicare. It is now better than it used to be, but it still confounds us.

Federal law provides that if there is a third party responsible for causing the medical care, Medicare is not responsible to make payment for the medical care. However, Medicare will make “conditional payments” if the patient agrees to reimburse Medicare for the medical bills paid by it. The federal law does have an element of fairness to it, because it provides that it the Medicare beneficiary hires an attorney to help recover from the responsible third party, Medicare will pay its proportionate share of the attorneys’ fees incurred.

This is how it works. The Medicare beneficiary is injured in a motor vehicle accident or as the result of negligent medical care. Medicare usually proceeds with payment of the medical bills and the patient pays the co-pays. The beneficiary then hires an attorney to proceed with a claim or lawsuit against the responsible party and their insurers. The federal law provides that the liability insurer can be held responsible for reimbursing Medicare if the beneficiary and his or her attorney does not, so most liability insurers require proof that Medicare has been reimbursed or will issue a check directly to Medicare for the claimed amount.

Attorneys are also responsible if Medicare is not reimbursed, so we have a legal and ethical responsibility to make sure Medicare is paid. If we don’t take into consideration Medicare’s interest in the case, Medicare can later pursue the attorney and the beneficiary. The risky thing for the beneficiary is that if Medicare is not reimbursed, the beneficiary can lose benefits until the amount of new medical bills incurred equals the amount that Medicare should have been reimbursed.

Therefore, we contact Medicare, which has hired a contractor in Oklahoma City to handle these matters. The people handling this for the Medicare contractor are usually very friendly, but you occasionally remain on the phone for an extended period of time to wait to talk to a representative.

I love waiting on hold. It is one of my favorite things in life. I normally put the call on speaker phone and wait for someone to talk to me. You just have to set aside 30 to 45 minutes to be on hold so you can talk to someone.

There are occasions when Medicare claims more than what they should. They base the reimbursement on ICD – International Classification of Diseases and Related Health Problems – codes. The ICD code can be accessed on the internet and so it is important to examine the code number for each amount submitted for reimbursement. Our receptionist has become quite efficient at looking up the codes and preparing summaries for me.

We then contact the Medicare contractor and inform it of the error of its calculations and most often we are able to come to an agreement. There is a right of appeal, and we have exercised that also. Settling a case is sometimes the easy part. Dealing with the Medicare contractor can be the most difficult part of the case.

If you have an Advantage plan the Medicare contractor in Oklahoma City we normally deal with does not handle those matters and so we have to contact another contractor to determine the reimbursement and fuss with them if we disagree on the reimbursement. Each Advantage plan has its own contractor, so we have to find the right contractor and establish a relationship, which can take time. Once the relationship is established that process actually works better than dealing with the Oklahoma City contractor, but it is still not easy.

There is another issue we are facing now and this dealing with future medical care to be paid for by Medicare if needed. There is much controversy in our profession about a concept called “Medicare set-asides.” Currently, no regulations or laws require us to consider Medicare’s interest in a civil claim for future medical care. Some liability insurers are still insisting on requiring us to consider Medicare’s interest in future medical treatment for the injuries caused by the negligent insured of the liability insurer, which we fight vigorously.

Medicare set-asides have been required in workers’ compensation cases for several years. If an employee is injured on the job and requires future medical care that could be paid by Medicare, the claimant is required to set aside money to cover those expenses in the future. Medicare won’t pay for that future medical care if a set aside trust is not established. There are contractors that have developed a cottage industry of determining what amount should be set aside. It requires the set-aside contractor to examine the future medical needs of the claimant and then determine the amount of the future medical care. It is akin to pinning the tail on a donkey because most people don’t know when they will need future medical care and what the cost will be.

Medicare promises to adopt regulations that require set-asides in civil cases, but we have been hearing that for several years. Some lawyers say that they are still required without regulations, but many disagree. Fortunately, we have not had to deal with the issue very often. I side with those that say that they are not required, but I fear the day that they will be. More headaches.

Bob Buckley is an attorney in Independence, . Email him at