[WSBAPT] Center for Medicare and Medicaid Services (CMD), Coordination of Benefits & Recovery (COB&R)

[Eric Nelsen]

Alexis--I haven't dealt with this in a while but had to do quite a bit of research a few years ago, and I think I recall that the state's statutory bar on recovery is not effective against Medicare Secondary Payer. The feds make their own rules. If I am remembering this right, it's different with Medicaid, because that's federal funds paid to the State and then doled out under a State program, administered by DSHS, a state agency subject to the state's statutes.

And, the recovery can be not just against the Estate, but anyone who received a portion of the proceeds. Some undigested chunks of info that I have from back then:

The authority of Medicare/Medicaid to come after everybody who has ever been associated with the settlement payout is statutory.  The provision allows the feds to look to the insurance company for proceeds even after the underlying tort case has been settled, policy has been exhausted or the like.  The Centers for Medicare & Medicaid Services (“CMS”) may bring suit in the federal government’s name against any or all of; 1) any or all plaintiffs, 2) any or all defendants, 3) any or all insurance carriers potentially subject to making any payment of any money to any claimant, 4) any person or entity which received any portion of settlement proceeds. See 42 U.S.C. § 1395y(b)(2)(A)(ii); 42 C.F.R. § 411.24(e).  When read together, the statute and the CFR have been interpreted to include, inter alia, physicians and attorneys as persons receiving proceeds of payments and from whom a recovery may be sought. See 42 C.F.R. § 411.25(g).

The only limitation to the assertion of a lien against an insurance company is that the lien is limited to the primary liability policies in effect.  Thus, any additional coverage held by the claimant, such as UM/UIM, umbrella or life insurance, is not subject to the lien. See Waters, et al. v Farmers Texas County Mutual Insurance Company, A.H.-92-942 (S.D. Tex. August 6, 1992).

Sorry I don't have a useful cite for the exact issue -- whether or not Medicare recovery is subject to RCW 11.40.051.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1320 University St
Seattle WA  98101-2837
phone 206-625-0092
fax 206-625-9040





From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Alexis Singletary
Sent: Thursday, May 19, 2016 7:29 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Center for Medicare and Medicaid Services (CMD), Coordination of Benefits & Recovery (COB&R)

Brief Estate Facts:

Man killed in motorcycle accident on 7/3/2013, age 59.  No Will; not married, no kids, no parents, 4 siblings.  On disability at time of death.  Estate opened, 8/5/13; Notice to Creditors published beginning 8/16/2013; sent to DSHS/DOR on 8/15/13.  Estate administered: $25,000 policy limits recovered each on 3rd party liability and 1st party UIM coverage; real estate transferred to one sibling via TEDRA; other siblings paid for share of estate from sibling who retained house.  Declaration of Completion filed 2/4/2016.

4/11/16 I receive a letter from Center for Medicare and Medicaid Services (CMD), Coordination of Benefits & Recovery (COB&R) notifying me that a Medicare Secondary Payer recovery case has been established in their system.  So, a subrogation claim for Medicare benefits paid on decedent’s behalf.  I don’t see how any Medicare benefits could have been paid related to the Date of Incident since he was pronounced dead at the scene, but we’ll see what the Payment Summary/Demand Letter we get in the next two months.  Probably ambulance response, etc. but would be limited.

My question for the group, and suspecting some of you have experience with COB&R, is: doesn’t the 2 year bar of RCW 11.40.051 apply?  I recall on the listserv a post that the bar applies to DSHS, but not sure on the overlap of what applies here for the Feds involved.  Back in my old life I did some PI work and successfully got subrogation claims waived where recovery was low policy limits such that the injured party was not made “whole”, so I think we can argue that, but best to say “too bad, you’re too late; by 8 months.”

Thoughts?
Thanks!
Alexis
____________________________
Alexis R. Singletary
Attorney at Law
Singletary Law Office, PLLC
253.833.8855
www.SingletaryLawOffice.com<http://www.singletarylawoffice.com/>

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