By Jason D. Lazarus, J.D., LL.M., MSCC
When representing a Medicare beneficiary, personal injury law firms should prioritize compliance with the Medicare Secondary Payer Act (MSP). Inadequate compliance processes can lead to severe consequences, including government actions against the firm. This blog post outlines the risks and best practices related to MSP compliance to safeguard both your firm and your clients.
Government Actions for Non-Compliance
The government’s enforcement of the MSPA is evident in several cases where personal injury law firms faced significant monetary liability for non-compliance:
Harrisburg, August 2020: A law firm paid $53,295 to resolve liability for non-repayment of Medicare conditional payments in a malpractice case against a pharmacy.
Philadelphia, January 2020: Another firm settled allegations of failure to reimburse Medicare by agreeing to pay $6,604.59, implementing compliance practices, and acknowledging potential liability under the False Claims Act.
Baltimore, November 2019: A law firm paid $91,406.98 to resolve allegations of failure to pay back Medicare, emphasizing that joint representation and referral cases must also comply. You can’t refer a case and be absolved of liability.
Maryland, March 2019: A firm settled for $250,000 due to reliance on an incorrect conditional payment letter rather than a final demand from Medicare.
Philadelphia, June 2018: A firm settled for $28k and agreed to initiate a compliance program as part of a settlement which was according to the US Attorney meant to remind attorneys of their obligation to reimburse Medicare.
These cases underscore the government’s commitment to bringing legal actions to recover Medicare dollars from personal injury law firms and holding attorneys accountable for non-compliance, regardless of the circumstances.
Best Practices for MSP Compliance
To navigate the complex regulatory landscape, personal injury law firms can adopt best practices for Medicare compliance. Firms should:
- Identify Medicare Beneficiaries: Establish processes to determine if clients are Medicare beneficiaries early in the representation.
- Understand Reporting Requirements: Make sure to appropriately report representation to Medicare and be aware of the medical information and ICD codes reported by defendant insurers under the Mandatory Insurer Reporting law (MIR) created by MMSEA.
- Appropriate Release Language: Avoid agreeing to inaccurate or onerous Medicare compliance language in settlement documents prepared by the other side.
- Resolve Conditional Payments: Ensure timely reporting and resolution of conditional payment obligations to avoid personal liability.
- Utilize Compromise and Waiver Processes: Implement procedures to reclaim funds from Medicare when appropriate.
- Educate Clients: Inform clients about Medicare compliance issues, especially regarding potential denial of future injury-related services.
- Monitor Liens: Be vigilant about identifying and addressing all Medicare liens, including those from Medicare Part C lien holders.
Implementing a Compliance Strategy
Client education for those who are Medicare eligible is the cornerstone of a successful Medicare compliance strategy for law firms. Lawyers and their staff must be well-informed about MSP-related issues to identify potential problems before they escalate into malpractice claims or personal liability. Outsourcing to a strategic partner who has deep expertise in the Medicare Secondary Payer Act should also be considered. Developing a systematic approach to handle Medicare beneficiaries and related compliance concerns is essential for protecting both clients and the firm’s integrity.
Conclusion
The government’s enforcement of the Medicare Secondary Payer Act highlights the necessity for personal injury law firms to ensure MSP compliance thoroughly. Non-compliance can result in significant monetary consequences, personal liability, and damage to the firm’s reputation. By adopting best practices and ensuring thorough firm-wide processes, law firms can navigate the complexities of Medicare compliance, safeguarding their practice and serving their clients effectively.
Turn to Synergy for experts who can help create a Medicare compliance strategy for your firm to mitigate liability risks and protect clients. Inadequate compliance processes can result in financial liabilities and worse yet damage to your firm’s reputation. Ensure your Medicare processes protect both your clients and your practice by partnering with Synergy for total Medicare compliance.
