One of the biggest headaches today in representing senior citizens in personal injury cases is the Medicare Secondary Payer Act. Whenever Medicare has paid for treatment, or may in the future pay for any treatment even tangentially related, it may demand repayment out of a personal injury settlement. So far, so good, at least in abstract theory.
In practice, however, the system is absolutely riddled with inefficiency. While Medicare’s contract with its sole source recovery contractor, Chickasaw Nations Industries, calls for providing a "conditional payment letter" within 30 days after request, that does not happen. We have had cases where it took 6 to 12 months to get the "conditional payment" number from them, and even then it is not a reliable number.
Legislation now pending in Congress, HR 4796, the Medicare Secondary Payer Enhancement Act of 2010 would correct this problem by requiring the Center for Medicare Services (CMS) to respond to requests for their lien amount within 60 days. Self-funded by a $30 application fee, this bill costs the taxpayers nothing, and it has the broad support of coalitions in insurance, large businesses and plaintiffs’ trial lawyers, all of whom have been frustrated by the inefficiency of the current system. The bill may not be perfect, but it is a vast improvement over the current mess.
The Medicare Secondary Payer system at present makes it extremely difficult to reasonably settle cases and impairs access to justice by making it uneconomical for lawyers to represent seniors on Medicare in injury cases. HR 4796 should be passed.
Ken Shigley is president-elect of the State Bar of Georgia and author of Georgia Law of Torts: Trial Preparation & Practice. 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).
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. 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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