Trostle v. Centers for Medicare and Medicaid Services: Part III

Trostle v. Medicare Part III

This is the third and final part in our case study on Trostle v. Centers for Medicare and Medicaid Services. We initially explained the underlying lawsuit, Medicare’s lien, and Mr. Trostle’s attempts to fight the lien arguing detrimental reliance in Part I. Then, we dove into the more recent case where the United States Government sued Mr. Trostle’s attorneys, estate, widow, and the original defendant arguing that it was forced to do so to recover its lien in Part II.

 

In Part III, we’ll discuss how not to get sued by Medicare.

 

Practice Tips

How could Mr. Trostle’s attorneys have avoided this scenario? Here are some tips that we would have used to seamlessly navigate the Medicare lien resolution process.

1. Understanding Medicare’s processes. To start, Medicare makes it unambiguously clear that a Conditional Payment Letter is not a final lien. Unfortunately, Mr. Trostle’s attorneys either accidentally, or purposely, ignored this process. They had a few options:
   1. Tell Medicare the lien is too small. Yes, this sounds crazy, but, if it is the difference between a $225,000 settlement and a $275,000 settlement, then no one is harmed;
   2. Negotiate a settlement that is contingent on the current lien, knowing full well sixty-six days in the hospital is a bit more expensive than $1,212.32; or,
   3. Utilize Medicare’s Final Conditional Payments process. This process, while sometimes difficult to manage, locks a lien for a three day period surrounding settlement discussions (when used properly);
2. Understand Medicare’s appeals processes. Medicare’s appeals processes involve four administrative appeals before a federal case can be filed. These processes also require fast responses (generally within 60-90 days) by the plaintiff or his attorneys. They are very specific. If you follow them properly, Medicare will postpone collection (although interest will accrue);
3. Always wait for Medicare’s Final Demand before disbursement. Admittedly, it seems Mr. Trostle’s attorneys did wait. They just didn’t want to pay a large Medicare lien so they took a stand;
4. Pay the lien on time. Yes – we suggest you should still pay the lien even when you are appealing its voracity. This has multiple benefits:
   1. Medicare’s BCRC agent will collect interest on any amount you don’t pay that remains on the lien post-appeal;
   2. If you pay, and are able to reduce the lien via appeal, then Medicare’s BCRC will refund that amount and no interest charges will occur; and,
   3. If Medicare has been paid, it can never argue it was forced to file suit to recover. This means your automatic reductions pursuant to 42 CFR 411.37(c) will remain;
   4. Medicare recently added online pay functionality via pay.gov – that same website you use to pay speeding tickets, parking tickets, and any other moving violations; and,
5. Hire an expert. Medicare’s system is greatly improved from the early days of Medicare lien resolution; however, it is becoming more and more complex. There are great opportunities to utilize in Medicare lien resolution – if you know them (see number one above). Find someone who does.

 

Final Thoughts

Ultimately, we believe Mr. Trostle’s attorneys were trying to advocate on his behalf for a greater recovery. That is their job and there’s no doubt they take pride in serving their clients. Their mistakes came in the form of a lack of expertise. Litigation sometimes begets litigation. We think that happened here.

And yes, we know Medicare lien resolution looks easy, but, the process can veer out of control quickly. You need to be prepared for every possibility. For example, our MASSIVE Medicare Lien Workflow has 196 possible steps (don’t worry, we don’t take every step, every time). We pay attention changes to Medicare’s processes, so that Medicare doesn’t come back to bite our clients.

 

If you have any questions or would like more information please click here or contact us at 833-466-2774.