C.F.R. » Title 42 » CHAPTER IV—CENTERS FOR MEDICARE & MEDICAID SERVICES, DEPARTMENT OF HEALTH AND HUMAN SERVICES › SUBCHAPTER B—MEDICARE PROGRAM › PART 411—EXCLUSIONS FROM MEDICARE AND LIMITATIONS ON MEDICARE PAYMENT › Subpart K—Payment for Certain Excluded Services

42 C.F.R. § 411.402

Indemnification of beneficiary

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(a) Conditions for indemnification. If Medicare payment is precluded because the conditions of § 411.400(a)(2) are not met. Medicare indemnifies the beneficiary (and recovers from the provider, practitioner, or supplier), if the following conditions are met:

(1) The beneficiary paid the provider, practitioner, or supplier some or all of the charges for the excluded services.

(2) The beneficiary did not know and could not reasonably have been expected to know that the services were not covered.

(3) The provider, practitioner, or supplier knew, or could reasonably have been expected to know that the services were not covered.

(4) The beneficiary files a proper request for indemnification before the end of the sixth month after whichever of the following is later:

(i) The month is which the beneficiary paid the provider, practitioner, or supplier.

(ii) The month in which the intermediary or carrier notified the beneficiary (or someone on his or her behalf) that the beneficiary would not be liable for the services.

For good cause shown by the beneficiary, the 6-month period may be extended.

(b) Amount of indemnification.1 The amount of indemnification is the total that the beneficiary paid the provider, practitioner, or supplier.

1 For services furnished before 1988, the indemnification amount was reduced by any deductible or coinsurance amounts that would have been applied if the services had been covered.

(c) Effect of indemnification. The amount of indemnification is considered an overpayment to the provider, practitioner, or supplier, and as such is recoverable under this part or in accordance with other applicable provisions of law.

Notes of Decisions
Cited in 4 cases (1 in the last 5 years), 1995–2022 · leading case: Edwin R. Banks v. Secretary, Department of Health and Human Services
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Edwin R. Banks v. Secretary, Department of Health and Human Services (2022) ca11 “§ 1395pp(b); see also 42 C.F.R. § 411.402 . Either way, § 1395pp pro- vides a one-time allowance—a “mulligan” if you will.”
United Sr Assn Inc v. Shalala, Donna (1999) cadc “…circumstances and to charge the patient if Medicare denies payment. HHS Br. at 25 n.5 (citing 42 U.S.C. § 1395pp; 42 C.F.R. §§ 411.402 (a)(2), 411.404; HCFA, Medicare Carriers Manual §§ 7300.5, 7330.-D). 9 . Where the service is one Medicare never finds medically necessary,…”
State v. Farris (1996) texapp · cites it 3× “The third point concerns the trial court’s decision to submit special issue three, an issue dealing with the Farrises’ claim for indemnification under 42 C.F.R. § 411.402 . We reverse and render judgment.”
Doerr Ex Rel. Merkel v. Chater (1995) ilcd “See 42 C.F.R. § 411.402 (a). Congress chose to limit § 1879’s offer of indemnification to two situations.”
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