What Is Medicare's Right To Recovery When Involving MICRA

Question: I understand that MICRA did away with the subrogation rights of private health insurers, but does Medicare maintain a right of recovery in the event of a settlement of a medical malpractice case for bills that it has paid. California Attorney

Answer: Thank you for the question. The answer to your question is that yes Medicare maintains its right to recovery despite MICRA. First, MICRA is a state law. Second, arguably payments made by Medicare fall outside the scope of collateral payments described in MICRA.

I would also caution not to disregard all private health insurer claims in California. It is important to remember that a self-funded ERISA would contest such an argument based on the fact that a self-funded ERISA is deemed not to be insurance. See FMC Corp. v. Holiday, 498 US 52 (1990). Thus this state law would not be saved from preemption. However, I would completely agree that an individual insurance policy or an insured ERISA plan would be barred from seeking recovery under MICRA.