Finding Your Code

Ethical issues can arise throughout the Medicare Secondary Payer (MSP) compliance process. MSP professionals are often faced with legal, administrative and medical challenges that have significant ethical implications. Although there have been attempts to create ethical standards for MSP professionals, to date, no official rules have been promulgated. So, the question remains: Without an official code of ethics, what ethical standards are MSP professionals bound by?

To answer this question, we must first identify who is an MSP professional. Since the inception of the first Medicare Set-Aside, the Medicare compliance industry has grown by leaps and bounds and those involved in the MSP business cross multi-disciplinary lines. From nurses to lawyers to claims professionals to entrepreneur, MSP professionals come from a variety of backgrounds, each operating under their own ethical codes.

The American Nursing Association, for example, has promulgated an official Nursing Code of Ethics, which has nine major provisions, one of which notes that the “nurse’s primary responsibility is to the patient, whether an individual, family, group or community.” The nurse must “protect the health, safety, and rights of the patient.” See American Nurses Association (ANA) (2015) Code of Ethics with Interpretative Statements. There is also a Code of Ethics and Conduct of the American Association of Legal Nurse Consultants, which was published in conjunction with the ANA Code and includes a requirement that the work of a legal nurse consultant be “free from bias.”

Claims professionals are also bound by ethical rules as work being performed by adjusters is deemed to be a public service. For example the Florida Administrative Code outlines ethical rules that are in place for claims professionals including the duty to be fair and honest with claimants and put the claimant’s interest above their own. An adjuster must also be competent in the administration of the claim.

Lawyers are also bound by professional rules of conduct. The American Bar Association (ABA) Model Rules of Professional Conduct (“Model Rules”) serve as a model for ethical rules in the majority of states. These Model Rules include an obligation not unlawfully, alter, destroy, or conceal a document having potential evidentiary value; a duty to provide competent representation; and to render candid advice which may include a consideration of moral, social, economic and political factors that may be relevant to the client’s situation. (See ABA Model Rules of Profession Conduct, 3.4 1.1, 2.1). Lawyers also have multiple rules discussing client obligations which are outlined in Model Rules 1.6 through 1.18. (Interestingly, the Centers for Medicare and Medicaid Services has also addressed attorney obligations in the MSA process. Ref: 4/21/03 Memo Q12 provides that “when an attorney's client effectively ignores Medicare's interests in a workers compensation case, the attorney should consult their national, state, and local bar associations for information regarding their ethical and legal obligations” and should “review applicable statutes and regulations, including, but not limited to, 42 CFR 411.24(e) and 411.26.”)

Although these professional ethical obligations can overlap, what happens if they are at odds or fail to address the unique complexities of the Medicare compliance system? Defining who the client is for Medicare Set-Aside (MSA) purposes illustrates this point. In general, the “client” is the person that contracts with you to perform services. Figuring out who the client is from a legal perspective is paramount to proper representation and can oftentimes be confusing. From a medical perspective, the client may not be the patient, but a corporate entity. However, the services performed in the MSA process are unique. This is in part because there is an obligation for all parties, be it the insurer, claimant, or counsel, to ensure that reasonable funds are allocated for the claimant’s future care to avoid Medicare exposure.

Unlike attorneys, nurses and insurance professionals who are part of the MSA industry, what if an individual or entity performing MSA services is not bound by any formal ethical rules? Are we to assume that these individuals or entities will utilize their own moral compass in making ethically challenging decisions or is strict abidance of MSP policies and procedures alone a sign of ethical compliance? For these reasons and more, the need for a formal MSP industry-wide ethical compliance code is clear. What types of ethical issues could be addressed as part an MSP professional ethics code? There are many.

Obtaining and providing medical records to CMS for the submission of an MSA is one area that can raise multiple ethical concerns. In some situations, the parties may ask a physician to clarify medication usage or treatment through a questionnaire when this is not clear or is misleading in the records. For example, if the medical records list a drug that claimant appears to longer be taking or the provider discusses a potential need for a Spinal Cord Stimulator (SCS), but nothing has been scheduled. What happens if the provider goes on to issue a very unfavorable opinion? What if there are other medical records that are unfavorable? Will these have to be included in the MSA as well if the provider never paid for this treatment? Concealing medical reports can be a significant ethical concern in the MSA process.

In addition, the claimant’s capacity to administer an MSA can also raise ethical concerns. Even if a claimant has not been declared incompetent, what if he or she cannot read or has no formal education after the fourth grade? Can this claimant comply with CMS requirements for administration? Additional concerns come into play when dealing with a pro se claimant. Does he/she understand the legal/medical implications of the MSA? What about the underfunding an MSA when the facts of the case make it clear that this is not appropriate?

In addition to the MSA process, there are also ethical considerations that must be taken into account in the area of Section 111 Reporting and Medicare Conditional Lien satisfaction. What are the obligations of the parties to the settlement when addressing liens? Does boilerplate language in the release really address these concerns? What should be reported and how? In addition to the above ethical concerns, one of the main issues to address when it comes to MSP professionals is competency and how failure to keep learn, understand and keep abreast of CMS guidelines, statutory mandates, and trends can impact the compliance process.

Ethical issues will continue to emerge and evolve as the Medicare compliance system develops and evolves. The potential onset of liability MSAs, new obligations imposed by CMS contractors, and a myriad of other issues will need to be addressed by practitioners now and in the future. Having a code of ethics that contemplates these unique and challenging situations can assist MSP professionals as they navigate these sometimes murky waters.