The Great and (Simultaneously) Terrible Medicare, Part II

Are you having fun yet learning about all this cool Medicare stuff?

Are you having fun yet learning about all this cool Medicare stuff?

We're back!

Last week I took a break from Medicare to write an impassioned article about certain scam-artist law schools that recently closed after spending 11 years selling the legal education equivalent of a 1996 Geo Metro for the price of a 2017 Range Rover.

Sorry. I'm getting dangerously close to another rant. If you need a rundown on what we talked about last week, check it out here! This time around, we're going to talk about (i) notice requirements and (ii) perfection requirements for Medicare recovery.

What do you mean by "notice?"

Notice can mean a couple of things. First off, it refers to the idea that medical providers, insurers and attorneys have a legal duty to let Medicare know about certain information under certain circumstances. Second, it means that Medicare recipients and their attorneys are pretty much automatically presumed to be on notice of Medicare's involvement in situations where Medicare would have a right of reimbursement.

Medical Providers

Let's start with the notice requirements imposed upon medical providers, shall we? If a provider knows that a Medicare recipient's treatment could involve the possible liability of a third party, the provider must notify Medicare, and also must determine whether any other sources of payment might be available (remember from last week that Medicare is a secondary payer). If there is another source, the provider has to try and bill it first (or file liens if the other source is an auto insurance carrier), but if Medicare is billed as the primary payer, you as the patient must provide the Program with documentation that you won't be paid for at least 120 days.

The provider needs to submit the bills with our trusty ICD9/ICD10 codes, because those are going to indicate that the treatment was for injuries received in an accident or other liability-implicating event. If the provider knows who the attorney or auto insurance carrier is, the provider needs to make Medicare aware of that information, allowing the Program to set up its right to reimbursement.

Auto Insurance Carriers

Nearly every carrier, be it through liability, UM/UIM, Medpay, et cetera, has a duty to determine whether a claimant is a Medicare recipient and report certain information to the Department of Health and Human Services. A lot of times, they'll figure this out by asking the claimant's attorney; if you don't have an attorney, they're probably going to be asking you personally.

Importantly, the insurer is required to report directly to the Program regarding any payments made to Medicare beneficiaries. That means that if you're trying to get cute and sneak your settlement past Medicare, there's a solid chance that you're going to get burned. Do yourself a favor and don't try it.


Your attorney has "imputed" notice, meaning that the law will treat him or her as knowing about your status as a Medicare beneficiary even if he or she has no actual clue one way or the other. It stands to reason, then, that you should tell your attorney at the initial consultation; and if you don't, your attorney should be checking your medical bills religiously to see whether there are any Medicare payments on there. There are steps the attorney has to take in order to let Medicare know that he or she is representing you.

Perfection Requirements

"Perfection" in this context doesn't refer to the normal, Hibernian-fish-sandwich type of perfection that we'd normally talk about; it's a lot more legal and boring, and means generally that a party looking to get paid has satisfied any procedural prerequisites and is officially entitled to payment. You see perfection all over the legal arena, from construction to secured transactions to contracts to bankruptcy.

In the Medicare-specific context, it turns out that Medicare really doesn't have to do anything in order to perfect its right to reimbursement. If Medicare paid a bill and a third party (like a liability carrier) pays for that bill later, Medicare is entitled to whatever amounts it had paid in the past. This is true regardless of the recipient's age, the amount of money at issue, or the type of coverage from which payment was received.

Isn't this fun?

I know this stuff is dry, but it's also super important. If you're a Medicare recipient and you're handling your own personal injury claim, I advise you to (i) read this series very carefully and (ii) think very hard about hiring an attorney to navigate these extremely complicated waters on your behalf. If you mess it up, you'll really wish you hadn't. I promise. Stay tuned for Part III on Friday!