RECOMMENDED ADDENDUM TO SETTLEMENT AGREEMENTS AND GENERAL RELEASES

Transcription

1 RECOMMENDED ADDENDUM TO SETTLEMENT AGREEMENTS AND GENERAL RELEASES Representations With Regard to Medicare s Interests (No Claim of Entitlement to Benefits) Releasor hereby warrants and represents that Releasor is not, nor has Releasor ever been, enrolled in Medicare Part A or Part B. Further, Releasor warrants and represents that Releasor has never applied for Social Security Disability benefits nor is Releasor appealing or re-filing for Social Security Disability benefits. Representations With Regard to Medicare s Interests (Claim of Entitlement to Benefits) OR Releasor is a male/female whose date of birth is and has a Medicare claim number of. Releasor is presently enrolled in Medicare Part A or Part B or previously was enrolled from to. Releasor warrants and represents there has been full disclosure of Releasor's Medicare status to Releasee. Medicare s Interests In reaching agreement on the terms of this Release, the parties acknowledge Releasor s possible entitlement to Social Security disability benefits pursuant to 42 U.S.C. 423, and possible receipt of Medicare or Medicaid benefits under 42 U.S.C. 1395y, as well as the entitlement of the Centers for Medicare and Medicaid Services ( CMS ) to subrogation and intervention, pursuant to 42 U.S.C. 1395y(b)(2), to recover any payment made by CMS. Releasor acknowledges that this Release is not intended to shift to CMS the responsibility for payment of medical expenses for the treatment of injuries allegedly or potentially related to the subject

2 matter of this claim. Releasor acknowledges that this settlement is intended to provide Releasor a lump sum (and/or future periodic payment) which will foreclose Releasee s responsibility for future payment of all injury related medical expenses. Non-Reimbursable Expenses (where there is future medical expense consideration) Without any admission of liability, the Releasor and Releasee have agreed to settle this case for the lump sum amount of $. The cost of future medical care related to the injury is in dispute. These medical expenses, which are not covered by Medicare but which may be necessary in the ongoing treatment of Releasor s injuries, and without an admission of liability on the part of the Releasee, have been taken into consideration in the calculation and settlement of Releasor s future medical expenses. Therefore, Releasor and Releasee agree that of the total settlement amount, $ (hereinafter referred to as CSA Fund ), shall be allocated to release all liability for future Medicare covered medical expenses. In addition, the parties reach this compromise based upon careful consideration of all of the medical reports and opinions, as well as Plaintiff s own knowledge of his/her condition and symptoms. It is not the intention of either the Releasor or Releasee to shift responsibility of future medical benefits to the Federal Government. The CSA Fund for future Medicare-covered expenses is intended directly for payment of these expenses. Upon receipt of tangible evidence that the Medicare-covered expenses exceed the CSA Fund, those expenses will be forwarded to Medicare for payment of covered expenses with proper documentation, provided the Plaintiff satisfies all of the Medicare program requirements at that time, including, but not limited to, payment of any enrollment fees, co-pays or deductibles associated with or required by the Medicare elective programs, including, but not limited to, Part B and Part D (Prescription Coverage). 2

3 Benefit Eligibility Releasor acknowledges that any decision regarding entitlement to Social Security benefits or Medicare or Medicaid benefits, including the amount and duration of payments and offset reimbursement for prior payments, is exclusively within the jurisdiction of the Social Security Administration, the United States Government, and the U.S. Federal Courts, and is determined by Federal law and regulations. As such, the United States Government is not bound by the terms of this Release. Future Benefits Releasor has been apprised of Releasor's right to seek assistance from legal counsel of Releasor's choosing or directly from the Social Security Administration or other government agencies regarding the impact that this Release may have on Releasor s current or future entitlement to Social Security or other governmental benefits. Releasor acknowledges that acceptance of these settlement funds may affect Releasor s rights to other governmental benefits, insurance benefits, disability benefits, or pension benefits. Notwithstanding this possibility, Releasor desires to enter into this Release agreement to settle Releasor's injury claim according to the terms set forth in this Release. Requirements of a Medicare Set-Aside Account In the event that there is a Medicare interest which must be considered and protected, Releasor acknowledges that Releasor must protect Medicare's rights, which should be done through the creation of a Medicare Set-Aside Account. Releasor warrants and represents that Releasor is aware of this obligation and the following responsibilities: Releasor should open an interest bearing bank account for the Medicare Allocation and should disburse only payments for Medicare covered expenses which are injury related from the account. 3

4 Releasor should not pay non-medicare covered expenses from this account, even if those expenses become Medicare covered after entering into a settlement agreement. Releasor should not pay any Medicare covered expenses from the account which are unrelated to the claimed injury. Releasor understands that if payments from this account are used to pay for services that are not covered by Medicare, Medicare will not pay injury-related claims until these funds are restored to the set-aside account and then properly exhausted. Should this occur, Releasor will be responsible for restoring such funds to the account. Releasor acknowledges and understands that upon complete exhaustion of the Medicare Allocation, Medicare may only be responsible for additional injury related Medicare covered expenses if Releasor is a Medicare beneficiary at the time of the complete exhaustion and has paid any enrollment fees, co-pays or deductibles associated with or required by the Medicare elective programs, including, but not limited to, Part B and Part D (Prescription Coverage). Releasor acknowledges and understands that Releasor will be responsible for any and all future medical expenses, including those which would be covered by Medicare if Releasor were a Medicare Beneficiary, after exhausting the MSA fund, should Medicare not be responsible for, or refuses to pay, any such expenses, regardless of the reason. Releasor acknowledges and understands that even if Releasor is a Medicare Beneficiary, Medicare will not pay for any expenses related to the claimed injury until, and unless, Releasor can provide documentation indicating that the entire MSA account, including any accrued interest, was properly expended on Medicare covered treatments and expenses related to the claimed injury covered by this Settlement Agreement, unless the MSA has been approved by Medicare, and the MSA is provided by way of an annuity. If 4

5 settlement is by an annuity, Medicare will not pay any expenses related to the claimed injury unless there is complete exhaustion of the funds which should be available in the MSA account, including the seed money, previous annual payments and interest. Releasor acknowledges Releasor's obligation to maintain accurate records of all expenses made from the Medicare Allocation and provide a final accounting when all funds have been properly exhausted or disbursed from the Medicare Allocation before Medicare will make any payments for Medicare covered expenses for the related injury. If the total settlement meets the CMS workload review threshold and is submitted to CMS for review and determination, Releasor will be required to prepare and submit annual reports to the assigned Medicare Lead Contractor to include summaries of any transactions on, and status of, the MSA account, which include the date of each service, procedure performed, diagnosis and paid receipt or cancelled check. If Medicare does not approve the MSA, you may be required to pay any additional amounts that Medicare might required to be added to the MSA. Medicare Recovery Action Releasor agrees to hold harmless, indemnify and defend Releasee from any claim or cause of action, including but not limited to, an action by CMS to recover or recoup Medicare benefits or loss of Medicare benefits, including past, present, and future and/or conditional payments, regardless of whether the claim or cause of action has merit. Releasor shall be responsible for and hold Releasee harmless from any claim for conditional payments made by Medicare, including past, present and future. Should Medicare make a claim for conditional payments, Releasor shall not use any of the CSA funds to pay for said conditional payments. Complete Understanding 5

6 Releasor hereby declares that the terms of this Release have been completely read and are fully understood and voluntarily accepted for the purpose of making a full and final settlement of any and all claims, disputed or otherwise, on account of injuries and/or damages related to the Claims set forth herein, and for the express of precluding forever any further additional claims against the Releasee arising out of the aforesaid incident, accident or occurrence. 6