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Kelso v. Levitt, 2006 U.S. Dist. LEXIS 26695 (D. Mo. 2006)

Plaintiff contested Medicare’s claim under the MSP statute. Initially counsel informed Medicaid by letter that there was no duty to reimburse Medicare due to the holding in Thompson v. Goetzmann, 315 F.3d 457 (5th Cir. 2002). Medicare responded that even if Goetzmann was relevant, it would not apply to beneficiaries residing outside the Fifth Circuit. Later, a malpractice claim was settled for $55,000 and Medicare asserted a claim against the proceeds for $6,896.72. Plaintiff appealed the claim raising four issues: that recovery should be waived due to financial circumstances; that the reimbursement calculation included expenses unrelated to the negligence at issue in the malpractice action; that the reimbursement calculation included amounts previously repaid; and issued involving prompt payment. A hearing was held before an ALJ who ruled in Medicare’s favor. On appeal, the court determined that a Medicare overpayment existed by virtue of Plaintiff’s failure to reimburse Medicare. The parties acknowledged that CMS had the burden of proving the claims were related to Plaintiff’s injury, but contended they discharged that duty by providing a detailed billing summary; the court found that the summary constituted substantial evidence on the record of CMS’s claims. Plaintiff had also requested a waiver of the claim. The court found that a waiver under 42 U.S.C. ยง 1395gg(c) is not proper unless the Plaintiff is without fault. Here, the Plaintiff was not without fault since she had knowledge of Medicare’s claim, failed to reimburse Medicare and had knowledge of the procedure having previously reimbursed Medicare for certain other payments from an earlier recovery. Plaintiff appealed. Decided: April 26, 2006.

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