In the complex world of Medicare reporting and reimbursement obligations, a standardized, firmwide strategy for compliance has become essential for personal injury practices. In recent years, firms have come to recognize that it is critical for every attorney and staff member to have a basis of knowledge around Medicare compliance and fully understand the potential penalties for noncompliance which includes putting their Medicare beneficiary clients’ health insurance at risk.
The beginning of a new year, and a new decade, presents an opportune moment to take a step back to review your firm’s current Medicare process to further strengthen compliance efforts. To help you achieve a higher level of compliance confidence, we have identified 6 areas for review within the firm. A comprehensive audit of each of these areas will help illuminate opportunities for improvement which, when addressed through refreshed policies and procedures, lead to a more efficient law practice and ultimately, better-served clients.
1. Client Intake Documents
New client intake forms present the best opportunity to gather relevant information to identify a potential Medicare reimbursement obligation in the case. Additionally, asking the right questions on these forms and simultaneously gathering the right supportive documents will assist your firm in identifying other potential healthcare liens against any settlement or award your client may receive.
As a first step, review your intake questionnaire to ensure that at the very least, you are asking the most fundamental questions and collecting information around healthcare coverage. This includes checking Medicare status (Medicare Parts A&B and Medicare Part C) and dates of entitlement, other insurance coverage and dates of enrollment, and whether the client is now, or has previously been, a recipient of Social Security Disability Income (“SSDI”) with an emphasis on the relevant time period. Confirm that the attorney, paralegal or investigator who conducts the initial client meetings are collecting copies—front and back—of Medicare and/or other healthcare insurance cards whenever possible. Tracking down copies of these cards after initial client meetings can sometimes be challenging but they often contain information which will be extremely valuable in assessing a potential lien obligation in the future.
Additionally, ensure that there is a strict policy in place that any and all relevant healthcare authorizations are provided to the client early on and collected with signature as soon as possible. For example, at the bare minimum, a Medicare Proof of Representation letter and HIPAA authorization should be collected. On a regular basis, review your firm’s entire collection of healthcare authorizations which relate to the various potential health insurer-lienholders to ensure these document versions are up to date and filed in a centralized system location. The standard authorizations for lienholders such as Medicaid, Veteran’s Affairs and Tricare may change from year to year.
2. Written Policies and Procedures
It is advisable for every firm to have a concisely written document which clearly sets out the Medicare compliance process from start to finish and which anyone in the firm can reference for guidance. A written policy document will help to avoid internal confusion, misinformation, time delay, and unnecessary costs to the firm and client. This document should clearly delineate the step by step Medicare process, define role responsibilities, escalation points, and direct regular “checks” on the effectiveness of the process. Additionally, if the firm engages with a lien resolution vendor, the policy document should name the preferred vendor(s) and set out the specific protocol which applies when engaging with said groups (e.g. contact names, associated fees, additional authorizations required).
There will likely be a group of attorneys or staff in your firm who have deeper knowledge in the area of Medicare compliance that lead the process of reporting and reimbursement and lead client communication on the topic. However, it is important that every member of the firm has access to a document which sets out the basic steps along the Medicare lien resolution process and provides a template for “talking points” to help explain the Medicare lien obligation to clients as needed.
3. Team Structure, Roles & Vendors
When stepping back to review the Medicare compliance program at your firm, it is wise to look closely at the specific attorneys, staff, and outside lien resolution vendors who are intimately involved in the Medicare compliance process to determine if the firm is maximizing its use of internal human resources. It is also wise to regularly review the lien vendors your firm works with to confirm they are meeting or exceeding set performance standards.
All of the following questions are important to ask when investigating whether opportunities exist to refine the process to ensure maximum efficiencies and higher standards of compliance. How much time is being spent by attorneys and staff to resolve healthcare liens? What is the level of knowledge around compliance among these staff members who touch the process? Are there attorneys and staff who operate outside of set compliance protocol? Are there areas where outsourced lien resolution may enhance compliance efforts? And if your firm is already engaged with a lien resolution vendor, is the vendor involved meeting expectations for timeliness, proactive communication, and success in achieving lien reductions when possible?
Another important area to review is your firm’s training program to instruct attorneys, paralegals and staff of Medicare and other healthcare liens. Every new attorney or staff member should be required to participate in at least basic level of training around Medicare Secondary Payer regulations and the potential penalties for noncompliance. Additionally, it is recommended that that every firm institute regular firmwide Medicare and healthcare lien “refresher” trainings to cover legal updates and internal process changes. These trainings can be conducted by knowledgeable firm members who lead the firm Medicare compliance program or by outside vendor-partners who are experts in Medicare compliance and up to date on the process and regulations.
Even if there is a specific person or a designated department within the firm who leads the Medicare lien resolution process, it is also advisable to invest in deeper, more formalized trainings on a regular basis for the wider firm. The Centers for Medicare & Medicaid Services (CMS) provides free online training material and teleconferences which can be found on its website (www.CMS.gov). There are also several third-party groups who conduct conferences specifically on Medicare compliance and other healthcare subrogation issues in personal injury litigation. Investing in deeper training for these critical staff members will help ensure your firm is in compliance and not putting your client’s health insurance at risk.
5. System Updates
In 2020, your firm is likely utilizing a case management software to manage the day to day operations of the firm and house client file information. Revisiting your Medicare compliance program requires that you review your system structure to assess how much of the process is captured and tracked in the firm’s case management system. At the very least, the critical dates along the lien resolution process should be captured in your system with set triggers to alert appropriate firm members when timeframes are not met and/or deadlines are looming. Without an automated “tickler” system in place to keep the lien resolution process on track, there could be unnecessary delay in the process which could ultimately result in delay of the client’s receipt of settlement funds and the firm’s collection of fees. Ideally, any firm member could view a client’s electronic file at any point in time and be able to view the current status of the lien and expected next step.
Beyond tracking the basic lien resolution steps in the firm’s case management system, a firm should also consider inputting additional data points including achieved lien reduction amounts via claims auditing and negotiation; notations on potential future repayment obligations; and communication from lien resolution vendor-partners. The more information that can be uploaded automictically and housed in the system, the less likely for human error and oversight. Working with your IT team or case management system company, review where tweaks can be made to accomplish more automation in the process.
6. Management Information and Reporting
Now that your firm has refreshed and revitalized your process to create more confident in your compliance efforts, you should create a formalized protocol going forward for when and how firm leadership provides oversight on the process. It is recommended that at least quarterly, firm leadership should be able to generate a report to view basic information around Medicare and other healthcare liens in the firm’s cases. Some of the data points that this report could include are total number of liens, types of liens, timeframes for resolution by lien type, and reductions achieved due to claims auditing and negotiation.
A regular report allows for more visibility into the work of the firm’s staff and outside vendors which helps the partners assess the effectiveness of the overall process and draws their attention to any potential problems that need to be addressed.
LitPro is a legal process outsourcing and consulting company. LitPRO’s services in personal injury and mass tort litigation include claims administration, healthcare lien resolution, compliance program auditing, and lien resolution training. LitPro’s management team has a combined 30+ years’ experience assisting law firms manage Medicare compliance and healthcare lien resolution via outsourced administrative services.