BP Spill Medical Benefits Class Action Settlement Includes MSAs

Medicare Set-Aside Blog on January 14, 2013 | Posted by


On January 11, 2013, the US District Court of the Eastern District of Louisiana approved the medical benefits settlement for injuries resulting from the BP spill in April 2010. In addition to the numerous residents in the areas affected, the suit involves some of the 90,000 response workers involved in the cleanup as well. Among the many objectives achieved in the settlement was addressing Medicare Secondary Payer compliance [it is a Louisiana federal court, so we shouldn’t be surprised].

The interesting part was that the court acknowledged not only the reimbursement rights for related medical expenses already incurred, but also quoted the Federal Register solicitation last summer as authority supporting Medicare’s assertion of an interest in future medical care. This is certainly not to say that each individual plaintiff will receive a full MSA by CMS standards, but it sounds like something will be allocated to future medical rather than nothing.

The MSP “expert” on this case, the Garrettson Resolution Group, is not generally know for its support of the concept of LMSAs; regardless, in a class action situation like this, there would never be sufficient funding after attorneys’ fees and expenses to fully fund MSAs by their or anyone else’s calculations. In the many MDLs Garretson has been involved in since Zyprexa, it has developed a system in which plaintiffs are grouped by the nature and extent of their condition and their share determined that way rather than on an individual basis – efficient if nothing else. We can only assume the same strategy was applied here.

The most interesting section of the order contained the statements about the negotiation with CMS to ensure that class members would not be without coverage. And I quote:

As part of the Settlement Agreement, the Claims Administrator is negotiating a written agreement with the Centers for Medicare & Medicaid Services (“CMS”) to establish a global resolution program, as set forth in Section XXIX.A.1 of the Settlement Agreement, to resolve all of the Medicare Program’s interest in Fee-for-Service Medicare Part A and Part B recovery obligations in the settlement funds of Class Members who are or were entitled to receive benefits under the Medicare Program. This global resolution program will, if achieved, provide an efficient way to protect the Medicare Program’s interests in the settlement funds while also providing significant benefits to Class Members. As set forth in Section XII of the Claims Administrator’s October 22, 2012 Status Update, the global resolution program will provide numerous practical benefits to Class Members who are or were entitled to receive original Medicare benefits, ensuring that Medicare will not deny relevant Class Members coverage for any future medical expenses they might incur in connection with their alleged injuries. 

Would just love to see a copy of that agreement with CMS…

In Re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April
20, 2010. This Document Relates To: No. 12-968, Plaisance, et al. v. BP Exploration
& Production Inc., et al. and All Actions.
MDL 2179 SECTION J
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2013 U.S. Dist. LEXIS 4595