Liability Medicare Set Asides - Considering Medicare's Future Interests?
Posted date in Medicare, Medicare Secondary Payer Act, Medicare Set Asides, MSP ComplianceYou can’t find “consider Medicare’s future interests” anywhere in the law. Set aside requirements in workers' compensation cases were concocted based upon CMS’s interpretation of the MSP as a whole. If you review 42 USC 1395y(b)(2)(A), it says:
(2) Medicare secondary payer
(A) In general
Payment under this subchapter may not be made, except as provided in subparagraph (B), with respect to any item or service to the extent that—
(i) payment has been made, or can reasonably be expected to be made, with respect to the item or service as required under paragraph (1), or
(ii) payment has been made, or can reasonably be expected to be made under a workmen’s compensation law or plan of the United States or a State or under an automobile or liability insurance policy or plan (including a self-insured plan) or under no fault insurance.
The italicized words are where CMS’s mantra of considering Medicare’s future interests come from and is the basis of set asides (according to CMS). It is purely an interpretation of the MSP by CMS. That being said, Medicare can reject an injury victim’s future medical care post settlement on the basis that a primary payer exists within the meaning of the MSP. To avoid that from happening, it is prudent to consider whether to establish a liability MSA. As a CYA, a trial lawyer should do the following in cases involving a Medicare beneficiary whether or not a formal MSA is established:
1. Document your file to reflect advice and counseling of the client about MSP and appropriateness of MSA.
2. Advise client to set aside in a self administered MSA an amount equal to future Medicare covered expenses.
3. Get a waiver/acknowledgement of educated decision regarding MSA.
CMS does make it clear that the set aside process is voluntary. Nevertheless, CMS states that the recommended method of addressing the MSP and future Medicare coverage for injury related care is with a Medicare Set Aside. So while it is not required to go through the CMS set aside procedure to "consider Medicare's future interests", it is best practice for a trial lawyer to address these issues with the client that is Medicare eligible so he or she understands the potential impact of any settlement on Medicare eligibility.