CMS PURSUES RECOVERY DIRECTLY AGAINST ATTORNEY
United States of America v. Paul J. Harris, United States District Court, Northen District of West Virginia, Civil Action No. 5:08CV102:
In this pending case, the U.S. government is pursuing reimbursement for conditional payments made by the Centers for Medicare and Medicaid Services ("CMS") to a personal injury claimant. Specifically, Medicare made conditional payments for medical treatment in the amount of $22,549.67. Although the third party settlement was for only $25,000.00, CMS agreed to accept $10,253.59 to settle its claim. When the amount was not paid, this lawsuit was filed against the claimant’s attorney. The claimant’s attorney filed a Motion to Dismiss, arguing that he could not be held individually liable under 42 U.S.C. Sec. 1395y(b)(2) when he merely distributed the settlement funds to his client. The Court disagreed and entered an Order denying the Motion to Dismiss. The Court concluded that the government had a right to recover from any entity that received a primary payment, including an attorney. The federal regulation, as well as the Medicare as a Secondary Payer Statute ("MSP"), make it clear that "any entity" includes a beneficiary provider, supplier, physician, attorney, state agency or private insurer that has received a primary payment. This case has yet to be decided on its merits. Should the facts support the government’s claim, the claimant’s attorney could be forced to pay double what was originally owed.