State of Florida Residents
This section is written specifically for residents of the state of Florida. Laws differ from state to state, so if you have questions about these laws or similar issues, please consult an experienced Social Security Disability attorney or Personal Injury in your state.
1. Does the Medicare change apply to Medicaid consumers in the following Florida counties?
YES: Brevard, Gadsden, Hernando, Highlands, Hillsborough, Jefferson, Lake, Lee, Leon, Madison, Manatee, Miami-Dade, Orange, Osceola, Palm Beach, Pasco, Pinellas, Polk, Sarasota, Volusia, & Wakulla.
2. In Florida, if I am disabled and a Medicare recipient, can a physician legally charge me more than Medicare will allow?
No. Florida Statute §456.056, Treatment of Medicare Beneficiaries, provides in pertinent part of the following:
(5) Any attempt by a primary physician or a consulting physician to collect from a Medicare Beneficiary any amount of charges for medical services in excess of those authorized under this Section, other than the unmet deductible and the 20 percent of charges that Medicare does not pay, shall be deemed null, void, and of no merit.
3. So, if I am in an accident, what should I do?
You may have only a limited amount of PIP benefits, so in writing, advise your physician that after your PIP benefits are exhausted, they should bill Medicare for their services after your PIP benefits run out, otherwise you may be forced into litigation over your bill.
4. Does Florida law define me as a Medicare recipient?
Florida Statute Section 456.056 defines “Beneficiary” as a “beneficiary of health insurance under Title XVIII of the federal Social Security Act.” (42 U.S.C. § 1395 et seq., Health Insurance for Aged and Disabled).
If I become a Plaintiff and am already a Medicare Beneficiary and sustain injury, who is liable for damages including the amounts that treating physicians charged under contract/letters of protection?
You are liable to your physicians for bills you incur even though the person who caused you injury may be liable to you to compensate you for those damages. If you assign your claim in writing to your physician, that physician has your claim for the bills you incurred to him on account of someone else’s negligence, but this recovery is a limited one.
- Pursuant to Florida Statute §465.056 treating physicians are limited to charges authorized by Medicare as found in 42 U.S.C § 1395 et seq., which provides that physicians may charge only a limited amount above the Medicare-Approved Amount when the physician does not accept assignment of the claim. See 42 U.S.C. § 1395w-4 et seq., 42 C.F.R. §§ 424.56 and 414.48.
- Medicare set the limiting charges for years subsequent to 1993 at 115% of the Medicare-Approved amount for unassigned claims. See 42 C.F.R §414.20 and 42 C.F.R. §414.48 (if the physician accepts assignment of the claim, the physician is limited to only 100 percent of the Medicare-Approved Amount.)
- Moreover pursuant to 42 U.S.C.A § 1395w-4 (g), no Medicare Beneficiary is liable for payments of any amounts billed for service in excess of the limiting charge.
- Physicians who are enrolled with Medicare are bound by agreements not to charge Medicare Beneficiaries individually for services that the individual could have had covered under Medicare. See 42 U.S.C. §1395cc. So, notify your physician immediately that you are a Medicare recipient so he/she is not stuck holding the bag for hisher services or expecting you to make payments that Medicare would otherwise make.
5. How can a physician go about legally charging me more than Medicare will pay?
If a physician seeks to have a Medicare Beneficiary held liable as an individual for charges that are in excess of the Medicare-Approved Amounts, the physician must meet the requirements of 42 U.S.C. §1395a that mandates a written contract between the physician and the Medicare Beneficiary must be entered into and signed by both individuals that the contract set forth the specific services to be provided, that the Medicare Beneficiary will not submit a claim to Medicare, that the Medicare Beneficiary understands he or she will be responsible for payment of services and that Medicare will not reimburse him or her for those services, that the Medicare Beneficiary acknowledges there exists limits under Medicare regulations limiting charges to specific amounts, that the Medicare Beneficiary has the right to services provided by other physicians who would limit their charges to Medicare-Approved Amounts, and that the physician indicate whether or not he or she is a participant in the Medicare program. If no contracts that meet these requirements exist, then your physician may not collect more then the Medicare allotted amounts.
In addition to the contractual requirements, the physician must notify Medicare by way of affidavit, stating that the physician will not submit a claim under Medicare for services provided to the Medicare Beneficiary for at least two years after executing the contract. If the physician fails to abide by the regulations and codes under 42 U.S.C. § 1395 et seq, the physician may be subject to sanctions, including fines amounting to two to three times the excessive charge, removal from the Medicare program, refunding of any payments made by the beneficiary that are excessive and assessment of $2,000.00 for each instance of excessive billing.
It is obvious that Medicare does not want Medicare Beneficiaries to be taken advantage of by physicians circumventing the Beneficiaries right to have the charges limited by Medicare.
6. So, how would this work out in an accident case involving a Medicare Beneficiary?
For example, in an accident case, it is not unusual for physicians to bill the injured patient in excess of Medicare paid services because there is a financial incentive to do so. If the American Orthopedic Institute billed $35,417.47 over the limiting charges allowed by Medicare for the arthroscopic surgery for knee meniscus tear and related services. Dr. Smith billed $779.44 over the limiting charges allowed by Medicare for a single office visit and Calcium Chiropractic and Rehab billed $2481.28 over the limiting charges allowed by Medicare for chiropractic care and services. Billing amounts for these physicians exceed $46,018.35, which exceeds the Medicare-Approved amounts by at the least $40,000.00. The actual Medicare-Approved amounts equate to only about $7,440.00 for these services.
7. How do courts limit these recoveries from physicians in Florida?
The Second District Court of Appeal addressed the admissibility of charges exceeding Medicare amounts in Cooperative Leasing Inc. and Domer v. Johnson, 872 So.2d 956, (Flat 2d DCA 2004). The facts in Cooperative were that a motorist was injured in an automobile accident and the trial court allowed into evidence bills for all medical expenses. The bills were in excess of benefits paid by Medicare. The Second DCA ruled that the excessive billing was inadmissible because the plaintiff was not liable for the excessive billing pursuant to Title 42 U.S.C. §1395 and precedent. In citing the U.S.C., the Second District determined that the plaintiff’s medical bills were paid by Medicare at the Medicare-approved amounts and that the physician could not recover from the plaintiff personally. The Second District goes on to provide precedent that the plaintiff is entitled to compensation for reasonably valued medical care and found that the Medicare amounts paid to the physicians were customary and reasonable. This is also the basis for approved amounts under 42 U.S.C. §1395w-4. Therefore, any amounts in excess of the Medicare-approved amounts would allow the plaintiff to receive a windfall by recovering “phantom damages,” Id, at 959. In its ruling, the Second District goes on to provide that the difference between what the physicians charged and the Medicare-Approved Amounts are not a collateral source that would be deducted as a set-off post verdict. Id. at 960.
Moreover, all billing of the above physicians that do not meet the requirements for contracting with a Medicare Beneficiary and/or that are in excess of the Medicare-Approved Amounts are null, void, and of no merit as a matter of law pursuant to Florida Statute §456.056 It is of the utmost importance, therefore that if you are involved in any accident that you let your treating physician know you are disabled and on Medicare, so that you do not create any outstanding bills or bad-will by failing to tell your physician up front to bill Medicare, especially if you are involved in an accident other than one involving a car or other passenger vehicle.
7a. So even if I am injured and not at fault and get an insurance settlement or verdict do I still have to repay Medicare for money that Medicare spent on my medical care and rehabilitation?
Yes, you do.
7b. So whom do I contact to find out about how much my Medicare lien is?
You should contact ACS Recovery Services P.O. Box 12188 Tallahassee, FL 32317-2188 and Medicare Secondary Payer Recovery Contractor
P.O. Box 138832 Oklahoma City, OK 73113
8. So, are there limits on Medicare’s recovery of health insurance benefit payments made on my behalf if I have available Liability or Workers’ Compensation insurance available and my case has not yet settled?
Yes. When a Medicare beneficiary is injured Medicare will pay for accident related expenses normally covered by private insurance companies including automobile insurance and Workers’ Compensation coverage, but only when payments from private insurance sources cannot be expected to be promptly made.
9. How does Medicare affect tort liability cases?
In liability cases, Medicare will look to the recipient to reimburse Medicare for payments Medicare has made for accident related expenses that were made prior to the settlement of the personal injury case. As of 12/01/11 there was no requirement that a litigant reimburse Medicare for future injury related medical expenses for settlements under $250,000.00. If this were to occur, then, as it presently does in Workers’ Compensation cases, Medicare could require “Set-Aside” Arrangements.
10. How does Medicare affect Workers’ Compensation cases?
Unlike in Personal Injury Cases, in Workers’ Comp cases where there is no dispute over liability, and the case is to be settled in a lump sum of WC benefits, MSP (Medicare Second Payer) and CMS (Centers for Medicare and Medicaid Services) will require a “Medicare Set – Aside Arrangement requiring CMS approval of the Settlement or Set-Aside to assure that the injured beneficiary’s future medical expenses will not be paid for by Medicare but from the proceeds actually and reasonably set aside by the recipient as a consequence of the settlement.
There is a different rule that applies to Lump Sum Settlements that are a compromise of a WC claim that the parties have negotiated which is less than the full amount of total compensation or where there is a bona fide dispute as to liability. See 42 C.F.R Section 411.46.
11. What to do if I need even more information about Social Security Disability and other SSA programs?
If you need more information – visit http://www.socialsecurity.gov/mystatement on the Internet, contact any Social Security office, call 1-800-772-1213, or write to Social Security Administration, Office of Earnings operation, P.O. Box 33026, Baltimore, MD 21290-3026. If you are deaf or hard of hearing, call TTY 1-800-325-0778. If you have questions about your personal information, you must provide your complete Social Security number. If your address is incorrect on this Statement, ask the Internal Revenue Service to send you a Form 8822. The Social Security Administration won’t keep your address if you’re not receiving Social Security Benefits.