By Annie M. Davidson
As you may recall, we have been down this road before with a different Baltimore law firm and a Pennsylvania practitioner. Standard operating procedure when settling a personal injury claim requires the parties to first determine if a plaintiff is a Medicare beneficiary, and once confirmed it requires compliance with the Medicare Secondary Payer statute by ensuring that Medicare is repaid for any injury-related payments that it made. When that standard operating procedure breaks down, law firms can find themselves in the cross-hairs of the U.S. Department of Justice.
In this case the U.S. Attorney’s Office for the State of Maryland went out of its way to address situations where firms enter into joint representation agreements or act as co-counsel. “Plaintiffs’ attorneys cannot refer a case to or enter into a joint representation agreement with co-counsel and simply wash their hands clean of their obligations to reimburse Medicare for its conditional payments,” said U.S. Attorney Robert K. Hur. “We intend to hold attorneys accountable for failing to make good on their obligations to repay Medicare for its conditional payments, regardless of whether they were the ones primarily handling the litigation for the plaintiff.” With this settlement it seems the DOJ seeks to remind “attorneys of their obligation to reimburse Medicare for conditional payments after receiving settlement or judgment proceeds for their clients.” And that this obligation is “no less true for plaintiffs’ attorneys who refer cases to co-counsel or jointly represent plaintiffs.”
The easiest way to inoculate against future enforcement is to prepare proactively and systematically to address Medicare compliance issues at the time of a settlement. Confirm Medicare entitlement prior to settlement. Once identified, investigate whether Medicare alleges related conditional payments. When Medicare alleges conditional payments, all parties share a responsibility to ensure that those payments are properly addressed within the terms of the settlement, and ultimately Medicare is repaid.
ExamWorks Clinical Solutions’ team of conditional payment experts monitors conditional payment enforcement activities like this one. We work closely with our client partners to develop compliance solutions to prevent these types of exposures from materializing. If you need help with conditional payments please contact our Director of Conditional Payment Services, Lou Porrazzo, at 678-256-5085 or firstname.lastname@example.org.
About Annie M. Davidson
Annie M. Davidson is MSP Compliance Counsel for ExamWorks Clinical Solutions. In her role, Annie provides legal analysis to ensure the integrity and quality of ExamWorks' Medicare Secondary Payer (MSP) compliance services and related products. Prior to joining ExamWorks, Annie practiced as an insurance defense attorney in her native Minnesota where she litigated workers’ compensation and liability insurance cases, particularly those involving MSP issues. She is admitted to practice law in the State of Minnesota and the United States District Court for Minnesota, and is a graduate of William Mitchell College of Law. Annie can be reached at Annie.Davidson@examworks-cs.com or at 651-262-9618.