Monthly Archives: October, 2013

Medicare Gives Refunds? How Can My Client Get One?

Repaying Medicare for conditional payments is a necessary but unpleasant process which can result in a greatly reduced net recovery or no recovery at all for an injured Medicare beneficiary.  The Medicare Secondary Payer Statute has a repayment formula that is designed to maximize the return of funds to Medicare and provides no consideration for the future well-being of the Medicare beneficiary. The only consideration that Medicare makes in applying its repayment formula is whether or not the  amount of the Medicare Conditional Payments is less than, equal to or greater than the gross settlement.  (42 C.F.R. 411.37(c); 42 C.F.R. 411.37(d)).  Despite Medicare’s blind application of the repayment regulations, there is a way for the injured Medicare beneficiary to increase his/her net recovery.  This is by way of obtaining a refund from Medicare which sounds crazy, but it works. 

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From Roger Baron: State court’s authority to approve minor’s tort settlement NOT preempted by ERISA

Reprinted with Permission from Roger Baron

In the Matter of O.D. v. Ashley Healthcare Plan, 2013 WL 5430458 (9/27/13), the ERISA plan which had paid $33,683.58 for a minor’s medical bills (for personal injuries sustained in motor vehicle accident) removed the minor’s petition seeking approval for settlement of claim of minor from the Chancery Court of Pontotoc County, Mississippi.  This decision grants the plaintiff’s Motion to Remand.

The Court notes, at *5, that the petition for approval of settlement of claims,

does not affirmatively allege a federal claim… It is well settled law that a case may not be removed to the federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiff’s complaint, and even if both parties concede that the federal defense is on the only question truly at issue.

As to the suggestion that ERISA preempts state law related to the ability of state court to approve a minor’s settlement, the Court holds at *4,

The Court finds, based on the above-cited cases, and an understanding of Congress’ intent with regard to preemption and those areas traditionally regulated by the states, that Plaintiff’s claim for approval of the minor’s settlement are not preempted by ERISA.

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