Navigating Medicare compliance is a critical task when handling personal injury settlements involving Medicare beneficiaries. Ensuring total compliance with the Medicare Secondary Payer Act (MSP) requires a strategic approach and thorough understanding of the law/regulations. This blog post is a basic guide for trial lawyers when it comes to Medicare Secondary Payer compliance.
Identifying and Reporting Medicare Beneficiaries
The first step in Medicare compliance is to identify clients who are current Medicare beneficiaries or those reasonably expected to become beneficiaries within 30 months. Implement a screening method to flag these cases within your firm. Once identified, contact Medicare and report the settlement to obtain a Conditional Payment letter and ultimately a Final Demand. Carefully audit the Conditional Payment Letter and use the compromise/waiver process to achieve further reductions post payment of the Final Demand. Additionally, identify and resolve any Part C/Medicare Advantage Organization (MAO) liens.
Release Language
Release language is a vital component in Medicare compliance. Avoid overbearing or irrelevant language that can negatively impact your client. For example, make sure that the release doesn’t take away specific rights related to their government benefits. Also, ensure the release does not make the settlement contingent on CMS approval or other requirements that have no legal basis.
Early Intervention and Collaboration
Start the compliance process early in your case. Confirm disability eligibility with Social Security and gather all relevant insurance and government assistance documentation. Collaborate with opposing counsel on the information reported under the Mandatory Insurer Reporting (MIR) requirements. Ensure proper ICD codes are included to avoid future Medicare claim rejections.
Advising Clients on Medicare Futures Implications – Education and Expert Consultation
When dealing with Medicare beneficiaries, it’s crucial to assess whether future medical expenses are being paid as part of the settlement. If so, then: Consult, Advise and Document.
Educate your clients about the impact of not setting aside funds for future Medicare-covered expenses. Proper documentation of all compliance steps is crucial. Consult with experts to navigate the complexities of the MSP, including lien identification, conditional payment resolution, MSA creation, and release language. Expert guidance is essential to avoid mistakes that could lead to client dissatisfaction or legal malpractice claims.
If clients opt out of creating a Medicare Set-Aside (MSA), ensure they acknowledge the implications in writing. For those who choose to create an MSA, work with specialized companies like Synergy to perform the analysis and document the process accurately.
Avoid Complications at Settlement
The key takeaway is to manage Medicare compliance issues proactively to avoid disputes that could land you in federal court. Ensure proper ICD codes are reported and evaluate the necessity of an MSA with your client. Collaborate with experts and consider the potential for using the MSA as a negotiation tool to enhance settlement value. Carefully word the release to protect your client’s interests and avoid inappropriate language.
Conclusion
By following these steps, you can achieve total Medicare compliance, safeguard your clients’ interests, and navigate the complexities of the MSP with confidence. Proper planning and expert consultation are paramount to ensuring a smooth settlement process and avoiding legal pitfalls.
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. Having a Synergy expert perform a Medicare Expert Case Evaluation (MECE) helps you educate your client related to future potential denial of care and then document your file appropriately. Ensure your Medicare processes protect both your clients and your practice by partnering with Synergy for total Medicare compliance.
Written by: Jason D. Lazarus, J.D., LL.M., CSSC, MSCC
