Avoiding Conflicts Under The Medicare Secondary Payors Act, Part II

Hello, Secondary Payor Claim*

Last week, we discussed how a plaintiff’s personal injury attorney might take steps at the inception of the representation to avoid conflicts with his or her client over the Medicare Secondary Payors Act.  This week, we tackle what should be done later in the litigation, regardless of whether the initial suggestions have been followed. 

1.  Ascertain from Medicare how much is claimed during the litigation.  Try to negotiate a reduction at that time.  Try to negotiate the reduction before the case is settled or tried so that litigation strategy can be adjusted and the client knows the implications of an award or settlement.  The incentive (or lack thereof) to pursue the claim at all may prove useful in negotiating with Medicare. 

2.  Do not rely on your client to pay Medicare.  It is important that the attorney pay Medicare before distributing all of the funds if possible.  

3.  If the client objects to paying Medicare its share, upon receiving an award or settlement, comply with Rule 1.15 and reserve an adequate amount in your client trust fund to cover the potential exposure to Medicare.  Distribute the balance as otherwise required by the fee agreement and settlement. 

4.  If the client receives money directly, and you have reason to believe that Medicare may not be reimbursed, protect yourself from an allegation that you assisted a client in conduct that you knew did not protect Medicare.  At the least, send a CYA letter to the client.  Call the Bar Ethics Hotline if you have other questions. 

Next week, we will take a look at the personal injury defense attorney’s concerns. 

*Image of Dr. Nick, the Simpsons, Fox Broadcasting, all rights reserved.


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