Medicare's Subrogation Rights Against SSDI Benefits - Do they have them?

Question: I settled my client's third party tort claim in March 2010 and his workers' compensation claim in Oct. 2011. Medicare has not and will not be asked to pay anything for his accident related medical care given he is covered by workers compensation. However, after he settled his comp claim he filed for and began receiving SSDI benefits. Does Medicare have a subrogation right against his SSDI benefits?

Answer: The answer to your question, in short, is ‘no’, but let’s discuss how we get there. In settling both the liability claim and the workers’ comp (WC) claim, I’m certain that you determined that, based on the case specific facts as applied to the current law and guidance, that a Medicare Set Aside (MSA) was not appropriate. From your question, I would guess the reason why you arrived at that conclusion was that your client lacked the proper Medicare enrollment status to warrant an MSA. By that, I mean to say that your client was not a current Medicare beneficiary at the time of either settlement and did not possess a “reasonable expectation” of Medicare enrollment within 30 months (based on CMS’ own definition of the term located in the April 2003 WCMSA Policy Memo at Q/A #2). Since your client lacked the proper Medicare enrollment status, no MSA was needed. Having said that, Medicare would not have a right of subrogation against your client’s SSDI benefits going forward under the Medicare Secondary Payer Act (42 U.S.C. Sec. 1395y(b)(2)). Of course, you documented your file with the results of your MSA conclusions in case a CMS official asks questions later about how your client “considered and protected” its future interest when resolving the claims.