Medicare Subrogation and Third-Party Liability: A Practice Primer for the Perplexed Practitioner

Medicare regulations are often foreign to the practicing attorney. However, counsel must have a thorough understanding of the basics of Medicare billing in subrogation to adequately represent his or her client. The attorney who understands these regulations will be able to ensure that the client is able to receive and pay for all necessary medical treatment and will also be better able to protect the client’s financial interest at the time a final judgment or settlement is reached.

The purpose of this article is to provide the practicing bar with a working guide to the statutes and regulations so that the general practitioner will be better able to protect the client’s interests.

The government’s right to subrogation, when it has paid out claims under the Social Security Medicare Act to a beneficiary who has already received, or subsequently receives payment from an insurance company or a responsible third-party, was initially established by § 953 of the Omnibus Reconciliation Act of 1980, which has recently been amended by Public Law 98-369 (1984 Budget Deficit Reduction Act). The law has recently been codified at 42 U.S.C. § 1395 y (b)(1) (1985). The Health Care Financing Administration (HCFA) has published regulations at 42 C.F.R. § 405.322-325 (1984) to further the purpose of this statute. This article will outline those regulations and explain how they work.

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David D. Smith, Medicare Subrogation and Third-Party Liability: A Practice Primer for the Perplexed Practitioner, 21 Gonz. L. Rev. 145 (1985).

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