In the past few years, half the work and hassle in representing individuals in personal injury claims is the endless hassle with medical lien claims.
Medicare, which asserts claims under the Medicare Secondary Payer Act, is often the hardest to deal with because the Center for Medicare and Medicaid Services (CMS) bureaucracy is infamously slow and difficult to deal with, and will never tell us the amount they demand before we settle a case with the other side.
I had one case in my office in which it took 18 months after the case settled, writing to them about every 30 to 60 days, to get any response at all from Medicare about the amount they claimed for reimbursement.
For the past couple of years, an amazing coalition that includes the US Chamber of Commerce, major employers, the insurance industry and trial lawyers — groups that seldom agree on the time of day — has lobbied for the “SMART Act” (Strengthening Medicare and RepayingTaxpayers Act, S.1718/H.R. 1063), to rein in the unresponsive Medicare bureaucracy.
On December 19th, the U.S. House of Representatives — which can’t agree on much these days — suspended its rules to pass the SMART Act by a bipartisan vote of 401 to 3.
If ultimately passed into law, this legislation will:
- Require the Center for Medicare and Medicaid Services to issue a demand BEFORE a settlement, judgment or award in certain liability claims, rather forcing parties to fly blind into settlements and then drag out final closure for months or years after settlement;
- Establish a 3-year statute of limitations for Medicare Secondary Payer claims, rather than leaving parties exposed to late hits years after a settlement is concluded;
- Abolish the use of Social Security numbers for Section 111 Reporting;
- Establish a right of appeal for insurance companies and self-insureds;
- Soften Section 111 penalties giving the Department of Health and Human Services discretion when it issues such penalties;
- Establish an annual minimum thresholds for Section 111 reporting, where the cost to HHS is greater than the recovery.
Ken Shigley is immediate past president of the State Bar of Georgia and current chair of the board of the Institute for Continuing Legal Education in Georgia. Lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-12), he has an AV Preeminent rating in Martindale-Hubbell Law Directory and Bar Register of Preeminent Lawyers, and double board certification in Civil Trial Advocacy and Civil Pretrial Advocacy from the National Board of Legal Specialty Certification (formerly National Board of Trial Advocacy). In addition, he is listed in Super Lawyers (Atlanta Magazine), Legal Elite (Georgia Trend) and Who’s Who in Law (Atlanta Business Chronicle). In the American Association Justice, he is secretary of the Motor Vehicle, Highway & Premises Liability Section and a board member of the Trucking Litigation Group.