Medicare indemnity language for non-US personal injury victims
As you probably know, Medicare has a super-lien on personal injury recoveries where Medicare paid all or part of the related medical expenses.
Carriers will generally not cut a check to a settling attorney and their client without Medicare signing off on their lien amount, since the carrier might otherwise face possible penalties and interest if Medicare doesn’t get its cut.
The problem is, if the injured party is not a US citizen and didn’t contribute to social security or pay any Medicare tax, they won’t qualify for Medicare benefits and the government will not (at this writing at least) provide any document that states there is no lien.
If the conditions are right, then the solution (short of having Medicare on the check and sending it off for endorsement, which takes months) is an indemnity clause in the settlement agreement.
Make sure this will not blow back on you or your client, but if you decide to go this route, here is some language that has worked for us with State Farm and Farmers:
FURTHER, as a condition of the settlement and release, Claimants represent and warrant that as of the date of this signing, Claimants have provided the released party’s(ies’) Insurer ______________________ (“Insurer”) all information Claimants know about any and all Medicare rights to recovery as of this date. Claimants agree to reimburse, indemnify and hold harmless each of the persons, firms or corporations released hereunder and their Insurers, including their agents and assigns, with respect to all known and unknown Medicare rights to recovery related to the Subject Accident for which the federal government may seek repayment, as well as any fine or penalty the federal government may seek resulting from the sufficiency and accuracy of the information Claimants have provided to Insurers regarding Medicare rights to recovery known as of this date.
Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA. A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association. Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine. Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.