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Medicare Compliance, or else: A second law firm sued by DOJ for failing to be Medicare compliant

Jason D. Lazarus, J.D., LL.M., CSSC, MSCC

On March 18, 2019, the United States Attorney for the District of Maryland announced that the law firm of Meyers, Rodbell & Rosenbaum, P.A., has agreed to pay the United States $250,000 to settle claims that it did not reimburse Medicare for payments made on behalf of a firm client.  As part of the settlement, the firm “also agreed to (1) designate a person at the firm responsible for paying Medicare secondary payer debts; (2) train the designated employee to ensure that the firm pays these debts on a timely basis; and (3) review any outstanding debts with the designated employee at least every six months to ensure compliance.”

This is the second such settlement in the last year.  In June  2018, a similar settlement was announced by the U.S. Department of Justice Attorney’s Office for the Eastern District of Pennsylvania.  To read more about this prior settlement, click HERE.  Both of these settlements should remind attorneys of “their obligation to reimburse Medicare for conditional payments after receiving [a] settlement or judgment proceeds for their clients [as well as] not to disburse settlement proceeds until receipt of a final demand from Medicare to pay the outstanding debt.”

In today’s complicated regulatory landscape, a comprehensive plan for Medicare compliance has become vitally important to personal injury practices.  Lawyers assisting Medicare beneficiaries are personally exposed to damages and malpractice risks daily when they handle or resolve cases for Medicare beneficiaries.  The list of things to be concerned about is growing daily.  The list includes things such as:

  1. Not knowing what medical information/ICD codes are being reported by defendant insurers complying with Mandatory Insurer Reporting law (MIR) created by MMSEA.
  2. Agreeing to onerous “Medicare Compliance” language—that may be inapplicable or inaccurate –which binds the personal injury victim.
  3. Failing to report and resolve conditional payment obligations leading to personal liability.
  4. Not using processes to obtain money back from Medicare using the compromise and waiver process.
  5. Failure to identify a lien, such as those asserted by Medicare Part C lien holders thereby exposing the personal injury lawyer and the firm to double damages.
  6. Inadequate education of clients about Medicare compliance when it comes to ‘futures’ and the risks of denial of future injury-related care.

What do you do?  The answer is to develop a process to identify those who are Medicare beneficiaries in your practice and make sure that a process is put into place to deal with the myriad of issues that can arise.  Given the liability a law firm faces for failing to be compliant, outsourcing this function to experts like those at Synergy helps mitigate the firm’s risk.  Synergy’s Total Medicare Compliance program allows a law firm to address issues like Medicare Conditional Payment obligations, Medicare Advantage liens as well as Medicare Set Aside concerns by turning to us.

All lawyers assisting those on Medicare must be in the know when it comes to dealing with Medicare conditional payments as well as Part C/MAO liens.  Medicare beneficiaries must understand the risk of losing their Medicare coverage should they decide to set-aside nothing from their personal injury settlement for future Medicare covered expenses related to the injury.  Ultimately, it is about educating the client to make sure they can make an informed decision relative to these issues.  Beyond education of the client, the most critical issue becomes how to properly document your file about what was done and why.  This part is where the experts come into play.  For most practitioners, it is nearly impossible to know all  the nuances and issues that arise with the Medicare Secondary Payer Act.  From identifying liens, resolving conditional payments, deciding to set money aside, the creation of the allocation to the release language and the funding/administration of a set aside, there are issues that can be daunting for even the most well-informed personal injury practitioner.  Without proper consultation and guidance, mistakes can lead to unhappy clients or worse yet a legal malpractice claim.

For more information about our Medicare Compliance services, click here.

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