Issue 9 - July2004

Ask the Attorney by Deborah Green, esq
Are ‘concierge’ services for Medicare patients legal?

My Medicare patients frequently complain about the limited services that they are entitled to under Medicare. I have read about “concierge” or “boutique” services in which the patient signs a contract and pays a membership fee in return for special benefits such as house calls and extended visits. Is this legal?

The inspector general’s office of the U.S. Department of Health and Human Services (HHS) has issued an alert, warning doctors who charge Medicare beneficiaries extra money for special services to make certain that Medicare-covered benefits are not included on the list of services provided.

If Medicare covered services are provided, the doctor may be subject to substantial penalties, including possible exclusion from federal healthcare programs.

Permitted chiropractic services under Medicare are very specific, so you may be able to craft a “carve-out” that does not impinge on Medicare services. If you are in a multi-specialty practice, however, you need to be extremely careful regarding the services offered and may want to consider having a healthcare attorney draw up the contract.

I handle a lot of accident cases and I don’t get paid until the case settles. Although I get a lien, the patient’s lawyer will frequently discount my bill. It’s gone so far that I’ve had to bring lawsuits for payment. The lawyer waits until the last day before trial and then settles with me. What can I do?

The first thing that you should do is to make certain that the lien is not simply between you and the patient; it should also include the lawyer. The following language should be inserted in your lien agreement:

Patient hereby gives a lien to Doctor as against all proceeds derived from the Case (whether by settlement, judgment or otherwise) to secure payment of all fees owed to Doctor by Patient (or by Attorney, if such fees arise from this Case), as of the time such proceeds are received. Patient hereby directs Attorney to honor said lien and to pay such sums as are secured thereby directly to Doctor, as soon as possible after any proceeds are received.

Patient hereby expressly recognizes that even though this Lien has been given, Patient still remains personally responsible for all the Doctor’s fees and that payment of them must be made by him/her regardless of whether any money is received as a result of this Case.

Before Attorney distributes any money received as a result of this Case, Attorney agrees to make a written request and Doctor agrees to provide (within 30 days of Attorney’s request) a written statement of the Patient’s outstanding account balance including interest thereon.

With the insertion of this provision, you make the lawyer personally responsible to you by having him or her sign this letter. You also make the patient responsible for payment to you in the event that you are not paid your entire fee. Again, the lawyer would be in the uncomfortable position of having to explain this to the patient in the event that you were not fully paid.

Make sure that the lien agreement states that the prevailing party is awarded attorneys fees and that you are to receive a specific rate of interest on the money that is due to you

You should also refuse to settle with the lawyer if you are not offered the full amount owed to you. The attorney will most likely not want to go to trial; particularly since he or she has no defense. u

Deborah Green is admitted to the practice of law in New York and Florida. She can be contacted by fax at 954-971-3787; by phone at 954-971-7778; or by e-mail, at healthattorney@aol.com. Questions that concern the broadest audience will be addressed.

LEGAL DISCLAIMER: This column is provided for educational purposes only. The accuracy or timeliness of the information presented herein is not warranted. The information presented is not intended to be advice as to a specific fact pattern with which you may be presented. Accordingly, please note that the information contained herein is not being presented as legal advice with respect to any matter and that no attorney-client relationship is established.