In a case of first impression, a United States District Court in the Western District of Louisiana apportions a LMSA and reduces it due to a limited recovery.

In Sterrett, a Connecticut state court decided that future medicals had not been funded and as such no MSA was needed.

In Welch, a Federal District Court is asked to determine the need for an MSA and the amount of the set aside. 

Early v. Carnival Corporation is another case where it appears the parties can’t decide on the appropriateness of a liability Medicare set aside but in a new twist, they ask the court to decide the issue for them in a “conditional” settlement.  The Court in its opinion cited my article regarding “Medicare Myths”.  It ultimately held that there was no settlement since the Court can insert a missing term and couldn’t issue an advisory opinion on MSAs.

In Sipler, a NJ Federal District Court Ruled that an MSA was not necessary in a liability settlement.  However, the ruling was in the context of a motion to enforce settlement over a dispute about release language.  An MSA is never required, however if one isn’t done the injury victim might have no Medicare coverage in the future for injury related care.  This decision does not change anything in that regard.

Wife awarded 17.5% of funds set aside in a WCMSA as part of a marital dissolution upheld by Illinois appellate court.

With all of the changes on the liability Medicare set aside front, this blog post will summarize all of the relevant issues present in today's settlement landscape. 

Smith involves the approval of a Medicare set aside in a Longshore/Jones Act matter.  It is another in the line of orders that seemingly presume that MSAs are required in settlements pursuant to the MSP.  It is an important decision because it provides a path to total MSP compliance when CMS has refused to review a proposed MSA.

On 9/29/11, CMS issued a memorandum indicating there is no need for a liability Medicare set aside and that its interests would be satisfied if the treating physician certifies in writing that treatment for the alleged injury related to the liability insurance has been completed as of the date of settlement.

A United States District Court in Louisiana cites the Sally Stalcup Region 6 Liability Medicare Set Aside Memo as authority in its order.  This case is a shining example of the massive confusion over Medicare secondary payer compliance issues (conditional payments and MSAs).

CMS Region 6 issued a memorandum on liability Medicare set asides (“LMSA”) which has some useful information but has limited application outside of Texas, Oklahoma, New Mexico, Louisiana and Arkansas.

In Hinsinger, a New Jersey trial court found that a Medicare Set Aside established in a liability case should be reduced by procurement costs with plaintiff counsel being allowed to get his fees based upon the method set out in 42 CFR 411.37. 

Assistant U.S. Attorney Robert Trusiak of the Western District of New York develops protocols for Liability Medicare Set Asides.  This unprecedented action is perhaps the first in a line of similar actions in the face of inaction by CMS regarding Liability Medicare Set Asides.  Unfortunately, these protocols do little to clear up the mess that is the current settlement landscape for liability cases involving Medicare beneficiaries. 

The Florida Bar, in response to a personal injury lawyer’s request, issues Staff Opinion 30310 finding it unethical for defense counsel to request plaintiff counsel sign a release which includes indemnification/hold harmless language regarding the Medicare Secondary Payer Act.

The First District Court of Appeal in United Airlines v. Nemoto held that an agreement to settlement was enforceable despite an apparent contingency regarding a Medicare Set Aside which had not been fulfilled.

The ABA house of delegates, during its 2011 mid-year meeting, adopted a resolution regarding Medicare Set Asides and reform of the Medicare Secondary Payer Act.  It is the same old thing though, nothing new.

Upcoming seminar on Medicare Secondary Payer compliance and I will be presenting.

When a Medicare Set Aside is implemented, there are different options as far as how they are administered.  The injury victim can self administer the set aside.  In the alternative, a professional administrator can be hired.  This may be through a custodial arrangement or a trust. 

Defendant’s may try to use liability set aside allocations to limit the injury victim’s damages. 

A complete absence of an MSA allocation amount precludes the enforcement of an alleged agreement to settle according to Hudson v. Cave Hill Cemetery.

In the absence of an agreement as to who pays if an MSAT comes back substantially higher, you can’t have an enforceable settlement according to the ArvinMeritor v. Johnson decision.  Neither party can be forced to pay more than it agreed to.

The Benoit case is important because it judicially acknowledges an obligation to set aside monies for Medicare future expenses in a non-Workers’ Compensation case. 

Where does "consider Medicare's futuer interest" come from and what does it mean?  Read on if you want to know . . . .

How do you deal with a liability Medicare set aside allocation that exceeds the client’s net settlement proceeds?  One approach would be to use an Ahlborn type of formula to reduce the set aside amount.  Since there is no guidance on that particular subject, I would argue for the use of such a formula.

In Finke, a federal district court held that a liability Medicare set aside was not necessary where the client was covered by a group health plan that was primary.

There is much confusion these days by liability insurers and defense counsel regarding when an MSA is necessary.  I thought it might make sense to discuss when they are definitely not necessary.

CMS is routinely NOT reviewing proposed Liability Medicare Set Asides

HR 2641 addresses some of the problems with Workers' Compensation Medicare Set Asides (WCMSA) but it fails to address Liability Medicare Set Asides (LMSA). 

MMSEA TownHall Conference Call Addresses LMSAs