Why is defense counsel asking whether my client has kidney or Lou Gehrig’s disease?



Question: Why do defendants’ Medicare addendums/affidavits ask the plaintiff to state that he/she does not have end stage renal failure or Lou Gehrig’s disease?


Answer: Lou Gehrig’s Disease (a.k.a. Amyotrophic Lateral Sclerosis or ALS) and End Stage Renal Disease receive special treatment under the Medicare Act (42 U.S.C. Sec. 1395y). Individuals afflicted with ALS, upon applying for and being granted Social Security Disability Income (SSDI), become automatically enrolled in the Medicare program. This differs from the more typical route of waiting up to 24 consecutive months after having an application accepted for SSDI before the person becomes enrolled in the Medicare program. So, defendants and insurers typically include verifications regarding ALS and End Stage Renal Disease as a backstop to verify that a plaintiff is not eligible for Medicare benefits.

Since ALS and End Stage Renal Disease receive similar treatment in the Medicare Act, it would make sense that cases involving an ALS patient may have the same obligations as cases involving an End Stage Renal Disease patient.

However, while ALS is an automatic qualifier for Medicare enrollment, ALS is not mentioned specifically in any guidance promulgated by CMS with respect to Medicare Secondary Payer obligations -- although End Stage Renal Disease is. For example, Section 8.1 of the CMS Workers’ Compensation Medicare Set Aside Reference Guide Dated March 29, 2013, shows that CMS considers claimants with End Stage Renal Disease but not yet qualified for Medicare as having a “reasonable expectation” of Medicare enrollment within 30 months of settlement. However, CMS does not include ALS in that same category. Despite this, the Medicare Act clearly allows for such automatic qualification for those afflicted with ALS as well as End Stage Renal Disease.

We would expect that any confusion will be remedied once we see the Notice of Proposed Rulemaking for future medicals under the Medicare Secondary Payer Act. CMS has already provided its General Rule and Proposed Compliance Options to the Office of Management & Budget, and we expect to see the verbiage from that office shortly advising what these obligations will look like going forward.

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