Legal Memorandum: Reimbursement from Tort Recovery Proceeds

Issue: Under Florida law, if the items or services furnished by Medicare are not those for which a claimant receives an insurance award, can the United States recover for those items or services from the award proceeds?

Area of Law: Government Programs and Benefits
Keywords: Right of reimbursement; Items or services furnished by Medicare; Award proceeds
Jurisdiction: Florida
Cited Cases: 348 So. 2d 377; 714 F. Supp. 398; 616 F. Supp. 426; 598 F. Supp. 1017; 407 So. 2d 993; 266 So. 2d 94; 763 F. Supp. 205; 417 So.2d 329; 582 F. Supp. 1155
Cited Statutes: 42 U.S.C. § 1395y(b)(2); 28 U.S.C. §§ 3001, 3003(d); 28 U.S.C. § 3003(3), § 3201; N.C. Gen. Stat. §§ 44-68.10 to 16; 28 U.S.C. § 3201, §§ 3010(a), 3203(a), 3205, § 3002(11); 42 U.S.C. § 1395y; 42 C.F.R. §§ 411.37, 411.52-.54; 42 C.F.R. § 411.35
Date: 02/01/2001

           Smith v. Travelers Indem. Co., 763 F. Supp. 554 (M.D. Fla. 1989), holds that, while the United States’ right of reimbursement from the proceeds of a tort recovery is broad, id. at 561, such reimbursement for an item or service remains tied to payment for the item or service.  Thus, if the items or services furnished by Medicare are not those for which the claimants receive an insurance award, the United States cannot recover for those items or services from the award proceeds.  Id. at 562.

No special “Medicare lien” exists.  The Medicare statute provides a reimbursement right; i.e., as to payments for which Medicare should be the secondary payor, such payments “shall be conditioned on reimbursement to the appropriate Trust Fund established by this title when notice or other information is received that payment for such item or service has been or could be made.”  42 U.S.C. § 1395y(b)(2) (1988).  The United States also has subrogation rights under this provision.  Id.

The federal government also may assert a judgment lien under the federal debt collection act.  The act provides the exclusive means for the federal government to recover judgment on a debt or to obtain certain pre-judgment remedies,*FN1 and preempts conflicting state law.  28 U.S.C. §§ 3001, 3003(d) (1988, Supp. II 1990).  “Debt” includes amounts owed on account of services, fees, restitution, reimbursement and other costs incurred and owed to the United States.  Id. § 3002(3).  The lien is perfected by filing, using substantially […]

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