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Traps for the Unwary
Medical malpractice liability insurers and self-insured entities that ignore the new Medicare reporting requirements do so at their peril. Not only do they face substantial penalties for non-compliance, but if the plaintiff does not reimburse Medicare from the proceeds of a settlement or judgment, the defendant and/or its insurer may be compelled to do so even if payment has already been made to the plaintiff! In such a case, double damages with interest may potentially be imposed.
Accordingly, it is no longer sufficient for defense counsel in a medical malpractice action to be knowledgeable regarding the medical issues in the case, the intricacies of HIPAA and the particular judge's rules in order to provide adequate representation to his or her client. Defense counsel must now assume the added burden of ensuring that timely and accurate reports are made to Medicare when a case is settled or a judgment is entered, and that adequate provision is made for reimbursement to Medicare.
A separate but related issue concerns Medicare “set-asides” and whether funds should be held, withheld or placed in trust to fund future medical payments. The tasks involved are intimidating; since the applicable statutes and regulations are complex, there is little case law interpreting them to date, and even the “alphabet soup” of acronyms is daunting. The challenges posed, however, are not insurmountable. This article provides an overview of some of the basic reporting requirements, offers suggestions for complying with them, and addresses the issue of set-asides.
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