Some individuals are “dual eligible,” meaning they qualify for both Medicaid and Medicare. In certain cases, a Medicare set-aside/special needs trust or pooled trust sub-account may be necessary to preserve the client’s dual eligibility. Medicare set-asides (MSAs) are devices used to preserve future Medicare eligibility. Currently, the use of set-asides in liability settlements is at best a grey area. However, in an abundance of caution, it may be prudent to consider setting one up when the injury victim is a Medicare beneficiary or reasonably expected to become Medicare eligible within 30 months. A special needs trust (SNT) or pooled special needs trust is appropriate for clients receiving Supplemental Security Income (SSI) or Medicaid benefits, or both. Federal law allows the creation of either an SNT or a pooled trust to preserve eligibility for needs-based benefits, such as SSI and Medicaid, after settlement of a personal injury claim.
According to the definition of the Centers of Medicare and Medicaid Services (CMS), dually eligible clients are those who qualify for Medicare Part A Part B, or both, and who qualify for Medicaid programs as well. Medicare coverage can be obtained prior to age 65 if an injury victim qualifies for Social Security Disability Insurance (SSDI). It takes a total of 30 months for someone who is disabled to qualify for Medicare (Medicare coverage begins 24 months after the first SSDI check is received, which itself takes five months and includes the month of receipt, plus one month).
Some Medicare beneficiaries have so little income or assets that they also qualify for state programs through Medicaid that pay for certain out-of-pocket expenses not covered by Medicare. Injury victims who qualify for Medicaid may be entitled to several programs that help with expenses not covered by Medicare. In addition, state Medicaid programs cover services that Medicare does not pay for at all. For example, Medicare does not cover nursing home care beyond 100 days, but Medicaid does for those who qualify.