In a decision out of the Supreme Court of Iowa, an attorney, Paul Silich’s (Silich) law license has been suspended for thirty days for failure to timely handle and reimburse Medicare conditional payments and for violating several ethical attorney professional rules.

The background of the case involved Silich’s legal representation of a Medicare beneficiary, Nancy Sanderson (Sanderson), who fell out of her wheelchair and broke her femur while home alone. Silich pursued an action against the manufacturer and retailer. The manufacturer and retailer disputed liability, asserting that Sanderson was not wearing her seatbelt at the time of her accident. Unexpectedly, Sanderson passed away on January 17, 2011.

Subsequent to Sanderson’s death, Clinton National Bank (the bank) opened Sanderson’s estate and was its appointed administrator. Silich then motioned the court to substitute parties, so that his clients would now be the bank, as the administrator of the estate, and Sanderson’s son’s conservator. Due to the fact that Sanderson passed away, Silich was not able to obtain her testimony that she was in fact wearing her seatbelt when she fell. Silich therefore settled with the defendants for $25,000, which was “conditioned on resolving any Medicare lien.”

At this juncture, the facts of the case become quite detailed and scattered in describing Silich’s efforts (and alleged lack thereof) to contact the Medicare Secondary Payer Recovery Contractor (MSPRC), his dealings with the bank’s attorney, Jerry Van Scoy (Van Scoy), and the frustrations that ensued with trying to resolve the Medicare conditional payment amount, which later resulted in Silich’s disciplinary action.

Everything considered, it took Silich 2 years and 9 months to resolve the conditional payments with the MSPRC. Initially, the MSPRC asserted that it had identified $48, 687 in medical expenses paid by Medicare that the MSPRC attributed to Sanderson’s accident.

Subsequent to the MSPRC identifying this amount, Silich made some lackluster and inconsistent attempts to contact the MSPRC and had communicated to Van Scoy that he believed he would be able to obtain a waiver of the conditional payment amount. However, Van Scoy and the conservatorship grew increasingly frustrated in the lack of communication from Silich about the resolution of the conditional payments. Large time gaps went by where Silich failed to communicate with the MSPRC altogether, and Silich admittedly was working on winding up his practice, rather than finalizing his clients’ matter.

Within three months of submitting proper authorizations to the MSPRC and the final settlement detail document, Silich received Medicare’s final demand of $16,666. Medicare was reimbursed, and 4 years and 10 months after Sanderson’s death, the estate was finally closed. The Iowa Supreme Court Attorney Disciplinary Board found that Silich violated several professional rules due to his delays in resolving Medicare’s lien and ordered his thirty day suspension from practicing law.

The decision seemed to gloss over one other detail, which was Silich’s failure to preserve Sanderson’s son’s settlement.  There was an allocation of the settlement in the amount of 40% to the son and 60% to the decedent.  Medicare took all of the son’s settlement, and it would appear that a malpractice action could also be available here by the son.

Commentary: The lengthy timeframe and protracted nature of this litigation, which resulted simply over what seemed to be Silich’s confusion in how to deal with the MSPRC, could have wholly been avoided had the parties worked with an MSP compliance partner with expertise in navigating Medicare’s contractors. Plaintiff attorneys should take note of this case and understand that failure to timely address Medicare conditional payments could result in disciplinary action.

Because Silich’s client was deceased, Silich needed the proper Proof of Representation to represent the estate for resolution of any conditional payments. It wasn’t until Silich filed the proper authorizations and also submitted the final settlement detail document that he was able to receive Medicare’s final demand, and altogether this took 33 months.

The devil is in the details—while there was significant evidence that Silich was distracted by other matters during this time, had he simply known what forms to submit and had an MSP compliance partner to walk him through this process, this matter could have been finalized much more quickly and simply.  Here, the details were simply knowing what forms were needed to engage with the MSPRC.

There are a number of ways that Medicare’s conditional payment process can be easily navigated simply and quickly. As discussed in our prior blog, come January 1, 2016, a final demand can be obtained pre-settlement through the MSPRC online portal. If you are not working with an MSP compliance partner to help you quickly navigate Medicare’s recovery process, you could be unnecessarily protracting the timeframe of the settlement process. Additionally, you will be unable to receive Medicare’s final demand pre-settlement without the understanding of this process and access to the MSPRC’s portal. Allow Franco Signor to be your MSP compliance partner to expedite your settlements and know Medicare’s final amount before you settle! Contact us at engage@francosignor.com.

Case Citation – IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, vs. PAUL ARTHUR SILICH, Respondent. 2015 Iowa Sup. LEXIS 97

Heather Schwartz Sanderson, Esq., MSCC, CHPE, CLMP, CMSP / Chief Legal Officer / Franco Signor LLC


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