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Crash. In an instant, another car runs a red light and crashes into your vehicle. All you remember is the sound of crunching metal and shattering glass. When everything stops moving, you are dazed. Then, you start hurting. Paramedics arrive and carry you to a local hospital for treatment. At least, you know your medical bills will be covered! You have a Medicare Advantage plan.

What happens if you later make a claim against the at-fault driver? What happens when you resolve that claim with the other driver’s insurance company?

I’ve written numerous times about the rights of Medicare, Medicaid and private health insurance companies to be repaid from your settlement. It’s a tricky area. It’s an area where a skilled lawyer can make a real difference, a big difference, in how much money you actually keep. In Alabama, we have several television and billboard lawyers who run settlement mills. This is where those billboard lawyers often just completely drop the ball. They don’t help their clients keep as much money as possible. What good is a settlement, if you don’t keep any of it? That’s wrong. Injured people deserve better.

A skilled lawyer who wants to help his injured clients must understand the rules that apply to each type of health coverage. If you understand the rules, you understand how to negotiate the best deal for your clients. You understand how to save your clients a tremendous amount of money! Those rules differ tremendously between various private and public health coverage types.

I know. Health care reimbursement sounds boring! The topic may not be exciting. But, it is a topic that makes a huge difference to clients. From a lawyer’s perspective, hard work with the details of a case is where you make a huge difference in what a client actually recovers in compensation! That’s why I’m writing here about a recent 11th Circuit decision.

How Long Does A Medicare Advantage Plan Have To Make A Claim For Repayment Following Your Personal Injury Settlement?

If you want to learn some background about the Medicare Secondary Payer Act, then the recent 11th Circuit case of MSPA Claims 1, LLC v. Tower Hill Prime Insurance Co., is the case for you! In its decision, the 11th Circuit starts with this teaser quote:

This case centers on the Medicare Secondary Payer Act, which—and this is hardly an outlier sentiment—is “notoriously complex.”

I won’t bore you with the statutory and regulatory details. If you want a good background, you can read the case. Again, I’ll just add that most settlement mill lawyers are far too lazy to work these details for their injured clients. After delivering its opening teaser, the Court provides a great history of the Act and how it impacts personal injury cases.

Here is what you need to know. Medicare itself and Medicare Advantage plans both have certain rights to repayment / subrogation from your settlement funds if you are a covered person. If you are a Medicare beneficiary, then the Act currently provides Medicare with a 3 year time period (statute of limitations) to make a claim. While Congress also provided specific rights to Medicare Advantage plans (private companies offering such coverage), it did not include a statute of limitations for them.

Oops. How long should a private payer under the Medicare Advantage provisions have to seek reimbursement? That was the issue in this case. Should the payer have the same 3 year period as the government? That’s not the way the law reads. In many cases where Congress fails to include a statute of limitations, the Courts will apply the limitations period in the underlying state. In this case, the personal injury occurred in Florida. The problem with applying a state statute of limitations is that every state is different. In Alabama, the statute of limitations for negligence cases (most car accidents) is currently 2 years. From state to state, the issue varies.

After examining the law, the 11th Circuit noted that Congress passed another law 28 U.S.C. §1658 with a catch-all statute of limitations. That law provided that any Federal laws enacted after 1990 without a provision for time limits “may not be commenced later than 4 years after the cause of action accrues.” Since the provisions applicable to Medicare Advantage plans were enacted after 1990 with no time limits, then the catch-all law applied. That means Medicare Advantage plans are subject to a 4 year statute of limitations. The good news for the parties in the 11th Circuit case — The settlement occurred more than 4 years before the plan made a claim for reimbursement. Thus, it was too late.

I won’t bore you with all the history of the Medicare Secondary Payer Act. I will say that I receive a lot of calls from lawyers seeking advice on Medicare repayment. I’ve written previous articles about the issue of subrogation in Alabama personal injury and wrongful death cases. This new case is important because it applies a 4 year statute of limitations to private payers under the Medicare Advantage plan provisions in personal injury cases.

I like to write blogs that provide a little practical advice. So, I won’t end with just a discussion of the law. Here is a tip for these claims.

Before You Repay Your Medicare Advantage Plan, Review The Medical Payments Very Closely!

We recently settled a case involving a Medicare Advantage plan. Our case involved a car accident in northern Alabama. Our client required extensive surgery a few months after the crash.

We prepared the client’s case and ultimately settled it. The private medical payer had a claim for reimbursement. It sent us a long list of medical charges. It wanted a lot of money.

With every case, we review the claimed charges in detail. We look at the medical codes and what was provided. In this case, the doctors coded the treatment at issue as degenerative in nature rather than traumatic. Was treatment due to the trauma of the car accident or due to degenerative conditions? Since we settled the car accident, we never reached a decision in court on that issue.

With the health insurer, we took the position the treatment was not related to the crash and successfully avoided paying money back to the plan. You have rights in these cases. Just because the plan demands money, that doesn’t mean you simply have to cut a check. Keep in mind the plan must prove it’s treatment was related.

We work our cases to obtain the maximum compensation possible for our injured clients. On the flip side, we also work our cases to save as much of that money for our injured clients. If you are hurt, this can be very important!

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From our office in Huntsville, we are accident and injury lawyers helping clients across Alabama. If you have a question about a car accident or other personal injury issue, let us know. Our consultations are always confidential and free. We are happy to answer your questions.