How Does The New Michigan No-Fault Law Affect Medicare? | JD Supra

Last updated: 03-30-2020

Read original article here

How Does The New Michigan No-Fault Law Affect Medicare? | JD Supra

How Does The New Michigan No-Fault Law Affect Medicare?
To embed, copy and paste the code into your website or blog:

Car accident lawyer answers questions about how Medicare covers auto accident injuries in Michigan
Does Medicare cover auto accident injuries in Michigan?
Yes, under certain circumstances, Medicare will cover auto accident-related injuries in Michigan. But unlike No-Fault auto insurance, it will want to be reimbursed and it will not cover all of the vital medical care services that a car accident victim needs.
The interplay between Medicare and No-Fault auto insurance for car accident victims has always been complicated. Frankly, even most auto accident lawyers do not understand this area of law.
But with the new Michigan No-Fault law , it is more important than ever for you to understand what Medicare covers for auto accidents, the limitations of its coverage versus being covered under No-Fault insurance, and how selecting lower PIP cap amounts after July 1, 2020 will impact you if you are injured in a car accident.
Under what circumstances does Medicare cover auto accident injuries?
Theoretically, Medicare would cover auto accident-related injuries – without seeking reimbursement – only if the person had no No-Fault auto insurance (or other auto insurance) to provide coverage.
But that’s not how things have worked out in Michigan because we do have No-Fault, which became mandatory for all drivers in 1973.
In practice, Medicare has generally not covered or been the “primary” payer on auto accident-related injuries in Michigan because auto No-Fault insurance has been expected to provide all medical care and coverage.
That is consistent with the federal law known as the “Secondary Payer” rule, which says they will not pay for “any item or service to the extent that . . . payment has been made or can reasonably be expected to be made . . . under an automobile . . . insurance policy . . . or under no fault insurance.” (42 U.S. Code § 1395y(b)(2)(A)(ii); 42 CFR Part 411.50(c)(1))
However, on those unexpected occasions when the federal health insurance program has ended up paying for something that No-Fault should have covered (such as when a medical biller gets confused or lazy about whom to bill or when a doctor or care provider bills them because they want to get paid right away), then those payments would be considered “conditional payments.”
The danger with “conditional payments” is that they will expect to be reimbursed . . . unconditionally.
Medicare can – and will – and does – seek reimbursement. This includes asserting a lien on a car accident victim’s third-party tort recovery for pain and suffering compensation. This will also include asserting a lien on all “excess” medical and economic damages that a car accident victim can now claim in a car accident lawsuit in tort after July 1, 2020 when these provisions of the new auto law take effect.
Does Medicare cover auto accident injuries under the new No-Fault law?
Yes. According to Insurance Bulletin 2020-05-INS , which the Michigan Insurance Commissioner issued just this past Monday, February 10, 2020. In the Bulletin, the Insurance Commissioner addresses the following questions regarding Medicare and No-Fault in Michigan:
Will Medicare cover auto accident-related injuries for a crash victim who opted out of No-Fault PIP medical benefits coverage under MCL 500.3107d?
Will Medicare cover auto accident-related injuries for a crash victim who has reached his or her selected coverage limit for No-Fault PIP medical benefits under MCL 500.3107c?
To both questions, the Insurance Commissioner answered “yes”:
“Medicare will pay for Medicare-covered services to enrollees who opt out of PIP medical benefits, are injured in an automobile accident, and have no other available coverage.”
“The new law also allows Medicare enrollees to purchase lower than unlimited levels of PIP medical coverage: $500,000 or $250,000 per person per accident. If a Medicare enrollee is injured in an accident and exhausts his or her PIP medical limits, and has no other available coverage, Medicare will pay for Medicare-covered services . . .”
However, I just want to raise a note of caution here. I’ve specialized for the last 26 years in auto accident litigation, and I’ve seen firsthand how the “Medicare Secondary Payer” rule is used to get money back through reimbursements from auto accident settlement recoveries. If I were speaking at a legal seminar to my fellow Michigan auto accident attorneys, I would advise taking more of a “wait and see” approach when it comes to how Medicare covers auto accident-related injuries – even after the Insurance Commissioner’s statement on Medicare coverage.
In other words, it wouldn’t be a complete surprise to me to see Medicare try at some future date to assert the federal “Medicare Secondary Payer” law to prevent being made a “primary” payer under the new No-Fault law. I say this because auto accident attorneys have seen Medicare do this before, successfully, with No-Fault coordination. In the coordination context, the Michigan courts concluded that the “Medicare Secondary Payer” law prevented a driver from coordinating No-Fault with Medicare to make it the “primary” payer on all car accident-related medical expenses.
It will be interesting to see how the following observations by the Michigan Supreme Court in John Hancock Property & Casualty Insurance v. Blue Cross Blue Shield (1991) play out under the provisions of the new No-Fault law:
“Because Medicare no longer pays for medical expenses arising out of an automobile accident where there is automobile insurance coverage of such expense, a person eligible for Medicare benefits who owns an automobile is obliged to pay the premium cost of providing for medical expense arising out of an automobile accident either to an automobile . . .” (Section IV)
The federal “Medicare Secondary Payer” law “explicitly mak[es] Medicare secondary to automobile insurance where it is available.” (Footnote 4)
Will Medicare argue that No-Fault auto insurance doesn’t cease to be “available” just because a driver chooses to opt out of and/or limit his or her No-Fault coverage? The Insurance Commissioner Bulletin is better to have than not to have. But the Bulletin is not dispositive. Medicare will have the last word. Auto accident lawyers in Michigan will have to wait and see how this plays out over the next few years.
Does Medicare cover auto accident injuries the same as No-Fault?
No, medicare covers auto accident-related injuries differently. This is very important. If you are a consumer reading this blog and you are trying to decide on what level of No-Fault PIP coverage to choose, this is a big reason why you need to be very careful about the idea of giving up auto No-Fault PIP medical benefits coverage in exchange for a reduced car insurance premium.
There are many critical medical services and treatment areas that car accident victims may desperately need for their care, recovery and rehabilitation. These are all routinely covered by No-Fault.
But not by Medicare.
In fact, Medicare covers auto accident-related injuries in a limited capacity. Below are some of the important medical services that it does not cover:
In-home attendant care
Transportation to and from medical appointments
Vehicle modifications
Executive functioning therapy for post-traumatic brain injuries
Does Medicare cover rehabilitation after a car accident?
Medicare will NOT cover rehabilitation services after a car accident in Michigan as comprehensively as No-Fault auto insurance.
Medicare may not provide coverage at all, or may only provide limited coverage, for many areas of injury rehabilitation. Compare this with auto No-Fault, under which rehabilitation services are covered as long as they are “reasonably necessary” to a car accident victim’s care, recovery or rehabilitation under Michigan’s auto law.
Does Medicare provide coordinated coverage for car accidents?
No. Drivers cannot coordinate their No-Fault PIP medical benefits coverage with Medicare because it is prohibited by the “Medicare Secondary Payer” law, which provides that Medicare won’t cover auto accident-related injuries when payment can reasonably be expected to be made by No-Fault insurance.
How long does Medicare cover rehab from a car accident in Michigan?
The answer to this question depends on whether Medicare covers the rehabilitation services in question at all, and whether Medicare has a limit on such coverage.
How does Medicare affect car accident settlements in Michigan?
If Medicare covers auto accident-related injuries that Michigan No-Fault insurance should have paid, then they will seek reimbursement for its “conditional payments” through a lien on the pain and suffering portion of any car accident settlement that the victim obtains in his or her case.
Additionally, once the No-Fault PIP medical benefits coverage levels become available in policies issued or renewed after July 1, 2020, it’s possible that Medicare may seek reimbursement of its “conditional payments” through a lien on a victim’s third-party tort recovery for “excess” medical benefits.
What are Medicare liens for pain and suffering?
A Medicare lien on a car accident victim’s recovery of pain and suffering compensation is usually how Medicare ensures that it will be reimbursed for any “conditional payments” made on the injury victim’s behalf for car accident-related medical expenses.
Lawyers refer to these as “Medicare super-liens.”
Here’s why:
If Medicare covers auto accident-related injuries for a car accident victim and that victim, ultimately, obtains a settlement or jury verdict for pain and suffering compensation as a result of his or her injuries from the car accident, then the victim must use as much of that money as is necessary to repay Medicare for what it paid out in medical expenses.
Federal law gives Medicare full legal subrogation rights to use its “super-lien” powers to make sure the victim repays whatever he or she owes .
Realistically, a Medicare super-lien for a car accident victim who has opted out of No-Fault insurance (or chosen a coverage level or than “unlimited”) could leave the car accident victim with a vastly reduced settlement recovery, or with nothing at all for all the pain and all the injuries he or she has suffered.
This would not be the case if medical care is covered by No-Fault insurance.
The new auto law in Michigan dangles the possibility of savings on No-Fault for people who opt for Medicare. But Medicare covers auto accident-related injuries differently from No-Fault insurance and comes with many of its own unique risks for car accident victims.
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
© Michigan Auto Law
+ Follow x Following x Following - Unfollow
+ Follow x Following x Following - Unfollow
Michigan Auto Law on:
"My best business intelligence, in one easy email…"
Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
- hide
JD Supra Privacy Policy
Updated: May 25, 2018:
JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.
This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at ) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.
Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the " My Account " dashboard (available if you are logged into your JD Supra account).
Collection of Information
Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:
Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.
Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.
Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our " Cookies Guide " page.
How do we use this information?
We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:
Operate our Website and Services and publish content;
Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
Measure readership and usage of the Website and Services;
Communicate with you regarding your questions and requests;
Authenticate users and to provide for the safety and security of our Website and Services;
Conduct research and similar activities to improve our Website and Services; and
Comply with our legal and regulatory responsibilities and to enforce our rights.
How is your information shared?
Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.
How We Protect Your Information
JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at .
Children's Information
Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.
Links to Other Websites
Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.
Information for EU and Swiss Residents
JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.
Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
Your Rights
Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.
You can make a request to exercise any of these rights by emailing us at or by writing to us at:
Privacy Officer
10 Liberty Ship Way, Suite 300
Sausalito, California 94965
You can also manage your profile and subscriptions through our Privacy Center under the " My Account " dashboard.
We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.
Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.
California Privacy Rights
Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.
You can make a request for this information by emailing us at or by writing to us at:
Privacy Officer

Read the rest of this article here