Friday, February 20, 2009

Advise Medicare of error?

Posted by Mary Skinner

I am representing a Medicare beneficiary in a slip & fall. Medicare has been notified. The client had surgery. We have EOBs documenting Medicare paid for hospital and surgical expenses. I have twice requested that CMS provide a statement of the total claimed by Medicare for conditional payments and twice received statements that Medicare is claiming zero. Obviously if I settle my file and send a "final" settlement statement Medicare can come back with an amended claim. My concern is whether I have a further statutory obligation or professional duty to protect Medicare when it is not advocating its own interests. Medicare's claim for reimbursement is statutory and can reach counsel. Rule 1.15 obligates counsel to protect the rights of known lienors. There is an argument that Medicare's interest is not a lien but a super right to reimbursement (whatever the difference may be) asserted first against the beneficiary and subsequently against other involved parties in the claim process. Do I have an obligation to at least escrow what I know from EOBs to have been paid by Medicare? How can I protect myself against Medicare coming back against me in the future? Obviously I wish to handle the matter in accordance with my professional responsibilities but Conn. Supreme Court precedent regarding the State, and by arguable extension other creditors including the feds, indicates that if no formal claim is advanced counsel can ethically disburse to the client. Any feedback and suggestions would be appreciated.

You are under no statutory obligation to advise Medicare of their error, however, it is in the best interest of the client to make all attempts to advise Medicare of the missing claims. This should be done in writing to Medicare advising them of the related claims that are not on the CP. If Medicare comes back again with a zero interest letter, then you have met your professional responsibilities and due diligence in attempting to get the correct lien amount. With that said, I would not disburse any funds until Medicare issues the final demand amount, reimbursement to Medicare has been made and you are in receipt of notice from Medicare that the file is closed.