According to the Medicare Secondary Payer (MSP) Act, Medicare automatically has a lien on your settlement for reimbursement of all injury-related medical expenses it paid on your behalf as a result of your accident or injury. This means that Medicare is legally entitled to a portion of your settlement proceeds. Medicare’s payments, i.e. conditional payments, are payments made to your medical providers for medical expenses that were incurred on or after your date of injury up until the date of your settlement. Under Federal regulation, Medicare has a right to recover from your settlement proceeds for all the money it [Medicare] paid out for your injury-related claims.
Over the past few years, there has been discussion about personal injury cases and whether a Medicare Set Aside Arrangement (MSA) is appropriate. “Determining whether a Medicare Set Aside Arrangement (MSA) is appropriate is based on case-specific facts.” Tort Trial & Insurance Practice Section, The Brief, Fall 2012.
Whether a MSA is needed in a workers’ compensation settlement depends on the settlement terms. For example, when a workers’ compensation case settles on an unaccepted basis, the settlement is three-fold containing allocations for wage loss, past medical expenses, and future medical expenses. Since the settlement specifically includes future medical expenses, a Medicare Set Aside Arrangement would be appropriate. However, in Massachusetts, almost all workers’ compensation settlements are based on accepted liability and there are no allocated future medical expenses because the settlement agreement allows the medical expenses to remain open after the settlement. This means that any future treatment would be covered by the workers’ compensation insurance company and therefore no Medicare Set-Aside Arrangement is warranted.
When it comes to a personal injury settlement, every case is different so there is no cookie-cutter mold as in workers’ compensation settlements. Personal injury cases involve various limits of liability, pain and suffering, multiple injuries, etc. In some cases, there simply isn’t enough liability insurance to cover the client’s damages. In that respect, how can Medicare require a set-aside when there isn’t even enough coverage to compensate the injured?
Since there is no specificity whether the settlement included any future medical expenses, then it would be impossible to determine whether a Medicare Set Aside Arrangement is necessary. However, if the case went to a jury and the jury specifically determined how much money was to be allocated for lost wages, past medical expenses, and future medical expenses, then it maybe MSA-appropriate. In the meantime, there is no Federal regulation mandating a Medicare Set Aside for any third party liability settlement, judgment or award.
If you would like to learn more about Medicare and Set-Aside Arrangements, please visit the following links:
Workers’ Compensation Medicare Set Aside Arrangements
Medicare Secondary Payer Recovery Contractor (MSPRC)
Karsner & Meehan, P.C. is a well-established law firm. We have handled numerous personal injury cases involving Medicare over the years. If you or someone you know has been injured as a result of someone else’s negligence in Bristol County, Plymouth County, or elsewhere in Massachusetts, you should contact the Massachusetts personal injury attorneys at Karsner & Meehan, P.C. to schedule your free consultation. We are ready to help you in difficult times.