Representation of Clients over the age of 65 is challenging because the Attorney has no choice but to address Medicare liens. If the Attorney fails to do so, the Attorney, personally, is potentially responsible for lien repayment.
A party with a “lien,’ has a right to settlement proceeds as a matter of law. Federal law provides Medicare with a lien for all amounts paid for medical treatment for which a third party is responsible.
Addressing the Medicare lien is a complicated process requiring the Attorney to communicate with the Center for Medicare Services (“CMS”) by submitting a series of forms. The process begins with the Attorney filing The Attorney begins by filing a Proof of Representation.
CMS responds by submitting a Conditional Payment Letter detailing the medical services and the amounts paid by Medicare. Often Medicare is able to obtain substantial discounts on the billed costs of services. The purpose of the Conditional Payment Letter is to allow review so that unrelated services can be excluded. The Conditional Payment Letter ends with a statement as to the amount of the lien required to be repaid Medicare.
Because medical treatment can be ongoing, the services and amounts in the Conditional Payment Letter will change over time. If unrelated services and expenses appear, the Attorney can request review to exclude these expenses from the lien.
The Attorney reports any settlement in a Final Settlement Detail Report which also references the cost of attorneys’ fees, costs, and subrogation amounts. Medicare will respond with a Beneficiary Conditional Payment letter reducing the lien by the amount of costs and legal fees and stating the amount to repay Medicare.
Sometimes Conditional Payment letter references an amount greater than the Client’s net recovery. In these situations, the Attorney can submit a Waiver of Demand and Medicare will consider further reducing its repayment.
This process can be both complicated and time-consuming. In a recent case, the process took more than a year. Fortunately, the end result was recovery for the Client.