Ask Jen

Medicare Set-Aside Blog on October 14, 2010
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Jen recently was asked the following questions:
Q:” I’m a plaintiff’s lawyer.  I found your blog while researching a stipulation that a defense lawyer has put on an offer that includes me working with this Gould company. I don’t know this company, but I’m skeptical about it because they’re claiming that I need to do a Medicare set aside in a slip and fall case where the plaintiff is not treating any longer. He needed shoulder surgery but couldn’t get it because of his underlying health conditions. Anyway, I was curious on your take on this entire area because it seems a little muddy to me.”
A:  “Medicare only has an interest to consider when obligations regarding the right to future medical care that Medicare would otherwise cover are released in an insurance settlement.  If you are comfortable that your client does not require any additional related care and have some medical evidence to support that position if and when Medicare challenges it, then Medicare may not in fact have an interest in need of protecting.  Understand that once the claim is settled & reported under the MMSEA requirements, the government is on notice that your client will not be eligible for coverage of treatment related to that injury.  So questions you need to ask yourself are are you certain no further care is needed, what happens if the underlying health changes and surgery becomes permissible, and does your client understand the implications of not doing a set-aside.

The area is a lot muddy, especially in liability situations. A lot of times it is not a matter of compliance as much as risk management.  Hope you find this helpful.”

Q:  “Yea, that kind of muddies it up more! 🙂 Some folks claim that you don’t have to do set asides for PI claims, period. That’s not your understanding, correct?”

A: ” The basis for that claim is one of omission.  CFR covers WC and liability & no fault in separate parts. in WC, there are 2 that specifically mention if an allocation is made for future medical. there is no corresponding regs for liability. my problem with that argument is that it is the statute that indefinitely forbids Medicare from making payment where another is established as the primary payer, and where is does make conditional payments to ensure that timely treatment is received, those are conditioned upon statutory provisions for repayment. the statute and regs are silent as to any means of severing that statutory obligation so while you can sever the underlying tort liability under state law, that act serves as the MSP trigger.   those folks have a defense, but I’m not sharing their confidence that it will be a winning one if and when the time comes  :)”

Look for more answers in the new Complete Guide to Medicare Secondary Payer Compliance , edited by Jennifer Jordan.  Available now from Lexis/Nexis.