Our Approach Plaintiff attorneys need to be aware that when settling future medical benefits from Worker's Compensation or a liability carrier or self-insured entity, if Medicare's interests are not considered, stiff penalties can follow to the attorney and client.
The Centers for Medicare and Medicaid Services (CMS), the federal agency that administers Medicare, has the responsibility to recover monies from past overpayments and to ensure that future medical benefits are paid by the primary payer (liability insurers, Worker's Comp, self-insureds, judgments, settlements, compromises, etc,) and not shifted to Medicare.
If Medicare erroneously pays a claim that should have been paid by the primary payer in a liability or Worker's Compensation case and finds that Medicare's interest was not properly considered, the penalty can be double the damages incurred by Medicare, and the injured party could lose their future Medicare benefits (42 C.F.R. 411.24(c)(2)). CMS is also authorized to recover not only from the claimant, but from you, the claimant's attorney, the fees you were paid. They can also collect payments made to medical providers, private insurers, or any other party receiving a payment from the case, including experts you may have paid (42 C.F.R. 411.24(g)).
Therefore, if the primary payer is settling a claim involving future medical benefits for a "qualified" injured party, an allocation to a Medicare Set Aside (MSA) account is worth serious consideration by all involved parties. An injured party is considered "qualified" if he/she is currently on Medicare (through Social Security Disability or retirement), or if there is reasonable expectation that the injured party is going to be on Medicare within 30 months of settlement and the amount of settlement is $250,000 or more.
The components and requirements for creating and funding an MSA are, unsurprisingly, very detailed, and require expertise and medical proficiencies that attorneys rarely possess, and generally don't have the time to develop.
While it is true that as of the date of this article, many regional offices of CMS are not requiring an MSA allocation in third-party liability cases, the statute referenced above gives CMS the authority to do so. Therefore, we suggest that you retain qualified experts that are up-to-date on the latest developments on this issue. Protect yourself from liability in this area and protect your injured client from potentially losing their Medicare services in the future. If you have a client that is on or could be eligible for Medicare in the near future, contact us at (888) 8AMICUS or call your local Amicus Settlement Planners office.
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