Injury victims who are even close to being old enough to become Medicare beneficiaries are currently victims of a Kafkaesque nightmare than adds insult to injury and interminable bureaucratic delay to the delays already involved in the court system.

The Medicare Secondary Payer (MSP) system was intended to ensure that Medicare does not pay for health care services when a third party-for example, a group health or workers’ compensation plan-has primary responsibility. However, I cannot believe that anyone who ever spent a day litigating on either side of personal injury cases had any voice in designing the system.

The current MSP system is unwieldy and impossibly sluggish. It makes it difficult to obtain reliable verification of the amount of a Medicare lien and retains antiquated procedures for communicating with the Medicare bureaucracy, meaning delayed justice for plaintiffs and delayed payback of Medicare benefits to the government. Moreover, if a party responsible for repaying funds to Medicare disagrees with bureaucrat’s calculation, the appeals process is slow, arcane and obscure. (We won one of those administrative appeals last year, but it took forever.)

As a result, plaintiff lawyers sometimes must delay settlement negotiations and routinely hold settlement funds in escrow for many months and even years while attempting to verify and resolve Medicare liens. In some cases, Medicare has demanded additional reimbursement after a case has been settled and funds have been distributed.

Personally, I have cases where we have been waiting over a year after a liability settlement for Medicare to say how much a client must reimburse. In one case, we wrote to the Medicare office that handles the initial requests for information last December and still have not even received a response despite numerous phone calls in which we had to sit on hold for an hour or more before getting a nonresponsive clerk who could not tell us anything except to check back in a few weeks.

There has to be a better way.  The Medicare Advocacy Recovery Coalition (MARC) is working on legislation that would solve many of the recurring problems with the MSP system. MARC’s broad-based membership includes major insurers, large corporations, consumer advocates and trial lawyers.  This coalition is supporting the Medicare Secondary Payer Enhancement Act (MSPEA), which will streamline and expedite MSP procedures and provide some certainty that will benefit all involved in resolving third-party liability claims.

The MSPEA (H.R. 4796), which enjoys bipartisan sponsorship, would establish a workable procedure for parties to determine how much is owed to Medicare before a case is settled, create a right of appeal for parties who disagree with CMS’s calculation of the amount due, and establish a reasonable period of limitations. One notable feature: Plaintiffs may calculate the amount they believe is due, and Medicare will have 75 days to appeal that calculation. Or plaintiffs may request a final reimbursement amount, and CMS will have only 60 days to respond or lose its right to reimbursement.

This makes all kinds of sense. It would enable us to handle Medicare reimbursement essentially as we did prior to the past year and a half.  Even though it involved "coloring outside the lines" I would routinely calculate the amount owed to reimburse Medicare, and send them a letter with the calculation and a check. Six months later I would get a letter scolding me for not getting the official number from Medicare first, and a couple of years later I would get a second letter accepting my number. Now they say that if I don’t follow an incredibly slow bureaucratic procedure — by which time the client may be dead of old age — I am subject to draconian personal consequences.

On a related front, there remains considerable confusion and misinformation concerning set-aside requirements for third-party liability claims under §111 of the MSP Act. Many insurers and defendants erroneously require set-asides as a condition of payment. This misinformation has the effect of impossibly delaying settlements for senior citizens who are injured and have legitimate claims.

Ken Shigley is treasurer of the State Bar of Georgia, of which he has been elected to become president-elect on 6/19/10 and president on 6/4/11.

Mr. Shigley is a truck and bus safety trial attorney representing seriously injured people and families of people killed in tractor trailer, big rig, semi, intermodal container freight, log truck, cement truck, dump truck, log truck and bus accidents statewide in Georgia.  He has extensive experience representing parties in interstate trucking collision cases, He served as chair of the Southeastern Motor Carrier Litigation Institute and is a national board member of the Interstate Trucking Litigation Group of the American Association for Justice.

A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he has been listed as a "Super Lawyer" (Atlanta Magazine), among the "Legal Elite" (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale). In addition to trucking litigation, he has broad experience in products liability, catastrophic personal injury, wrongful death, spinal cord injury, brain injury and burn injury cases.

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