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.
On May 3 of 2012, the Office of Management and Budget received advanced notice of proposed rulemaking (ANPRM) entitled “Medicare Secondary Payer and ‘Future Medicals’ (CMS-6047-ANPRM)” from CMS. On June 14th, the contents of the proposal were released by CMS. A sixty day comment period began on 6/14 which expires tomorrow on 8/14.
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.
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.
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.
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.