Medicare Reimbursement Rights in Asbestos Settlements, Exposure Prior to 12/5/1980

Question:

Dear Ms. Johnson, I was steered in your direction regarding expertise in the following situation: I wonder if you could point me in the right direction regarding Medicare Liens in asbestos cases and support for the position that such liens are not asserted for exposure prior to December 5th, 1980. Do you know if authority for this position is rooted in statutory law, case law (NJ?), or administrative law? Might it simply be a policy position taken? I appreciate your assistance.

-New Jersey Attorney

Answer:
Thank you for your inquiry, I hope that I may be able to help. With regard to asbestos exposure and Medicare recovery, Medicare’s position is based on their internal policy. The Medicare Secondary Payer provision was established with the Omnibus Reconciliation Act of 1980, and the December 5, 1980 date is used as a guide to determining asbestos exposure after the Medicare Secondary Payer program began. This information can be found on the CMS website, http://www.cms.hhs.gov/. Medicare’s position is as follows:

The Medicare Secondary Payer (“MSP”) liability provisions were effective December 5, 1980. Medicare may pursue recoveries from liability settlements, judgments, or payments when the date of accident, injury, exposure or ingestion was on or after December 5, 1980. Medicare’s claim would be for all Medicare reimbursed services on or after December 5, 1980, which are related to the liability settlement, judgment, or payment. Medicare’s recovery claim is based upon specific Medicare reimbursed services rather than some percentage of the liability settlement, judgment, or payment. Furthermore, Medicare has stated in asbestos recoveries in liability, not Workers’ compensation situation, “If the Asbestos exposure ended before December 5, 1980, Medicare will not pursue recoveries from asbestos liability settlements, since the MSP liability provisions were not effective until that date.”

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