MEDICARE SET ASIDE
SENATE BILL 2499

The more stringent reporting requirements of the Medicare secondary payer reporting statute, which requires the providers of liability, workers compensation and no-fault insurance coverage to determine whether claimants are entitled to Medicare and to provide certain information to the Department of Health and Human Services (HHS) if the Medicare recipient’s illness, injury or accident is the subject of the claim. The statute, which will take effect on September 30, 2009 applies in all cases which settle or in which a verdict or award is made after July 1, 2009.

The statute requires insurers, self-insured entities, entities with SIRs, and TPAs, who are designated responsible reporting entities (RREs), to provide the mandated information to the HHS in a timely fashion or face what appear to be draconian penalties of $1000 per day per claimant. Discovery demands in all pending and new cases should be revised to obtain information to help determine whether a claimant is or will be entitled to Medicare benefits or whether a claimant is receiving or intends to file for social security disability benefits (SSI) related to the claim and should request HIPAA compliant authorizations to obtain HHS records.

RREs may request, on a monthly basis, that HHS advise them of whether any claimant is entitled to benefits. This should assist you in identifying those claimants to whom the statute applies. We anticipate that many plaintiffs’ attorneys will object to providing this information and we foresee a process of educating the judiciary with respect to the new burdens placed upon RREs.
If you have any questions concerning this new statute, please e-mail your inquiry to
Mthurm@lewisjohs.com.