---
kind: "section"
citation: "42 C.F.R. § 411.37"
title: "42"
number: "411.37"
heading: "Amount of Medicare recovery when a primary payment is made as a result of a judgment or settlement."
url: "https://uscodex.org/cfr/42/411.37"
---

# §411.37. Amount of Medicare recovery when a primary payment is made as a result of a judgment or settlement.

- (a) **Recovery against the party that received payment—**
  - (1) **General rule.** Medicare reduces its recovery to take account of the cost of procuring the judgment or settlement, as provided in this section, if—
    - (i) Procurement costs are incurred because the claim is disputed; and
    - (ii) **Those costs are borne by the party against which CMS seeks to recover.**
  - (2) **Special rule.** If CMS must file suit because the party that received payment opposes CMS's recovery, the recovery amount is as set forth in [paragraph (e)](#e) of this section.
- (b) **Recovery against the primary payer.** If CMS seeks recovery from the primary payer, in accordance with [§ 411.24(i)](/cfr/42/411.24.md?p=i), the recovery amount will be no greater than the amount determined under paragraph [(c)](#c) or [(d)](#d) or [(e)](#e) of this section.
- (c) **Medicare payments are less than the judgment or settlement amount.** If Medicare payments are less than the judgment or settlement amount, the recovery is computed as follows:
  - (1) **Determine the ratio of the procurement costs to the total judgment or settlement payment.**
  - (2) **Apply the ratio to the Medicare payment.** The product is the Medicare share of procurement costs.
  - (3) **Subtract the Medicare share of procurement costs from the Medicare payments.** The remainder is the Medicare recovery amount.
- (d) **Medicare payments equal or exceed the judgment or settlement amount.** If Medicare payments equal or exceed the judgment or settlement amount, the recovery amount is the total judgment or settlement payment minus the total procurement costs.
- (e) **CMS incurs procurement costs because of opposition to its recovery.** If CMS must bring suit against the party that received payment because that party opposes CMS's recovery, the recovery amount is the lower of the following:
  - (1) **Medicare payment.**
  - (2) **The total judgment or settlement amount, minus the party's total procurement cost.**

## Notes

### Authority

Authority: 42 U.S.C. 1302, 1395w-101 through 1395w-152, 1395hh, and 1395nn.

### Source

Source: 54 FR 41734, Oct. 11, 1989, unless otherwise noted.