Are Medicare Set-Asides Required?

Question: Mother, father and two children were in a serious accident. Mother has catastrophic injuries. Her bills exceed $175,000. The auto insurance policy limits are $25,000 per person and $50,000 per accident. Medicare has not paid any money for the mother's treatment at this point, but she has applied and will be on Medicare in August of this year at which time it is expected that Medicare will pay future costs relating to the accident. 

I have two questions. First, am I correct that we are not required to report the settlement to Medicare, if we settle before October 1, 2010 according to your February 25, 2010 advisory?

Second, from your August 18, 2009 article on Medicare Set-Asides in liability settlements, my sense is that a $25,000 settlement in which future medicals are not specified, where the plaintiff has $175,000 in past medical, substantial pain and suffering, substantial past and future lost wages and other damages would not require a Medicare Set-Aside. Is this correct? My plan is to use the practice tips outlined in your August 18, 2009 article to convince defense counsel that a set aside is not required unless things have changed since August of 2009.

The mother also has an auto products defect case on file, but this is a long way off from settlement or trial.

Thanks for your assistance.

Texas Attorney

Answer: To answer your first question, the reporting to which you refer deals with defense reporting of the settlement to Medicare for MMSEA Section 111 purposes. This is different than the plaintiff reporting the settlement to Medicare as a part of verifying/resolving any conditional payments made by Medicare from date of injury to date of settlement. Let's assume your client becomes entitled to Medicare as of August 1, 2010. For MMSEA Section 111 purposes, if the case settles prior to October 1, 2010 and is to be paid in a lump sum (i.e., TPOC) as opposed to containing an ongoing responsibility to pay future meds (i.e., ORM), then defense does not have to report. However, if the settlement contains ORM, then the trigger date for those settlements is January 1, 2010 and defense would have to report for MMSEA Section 111 purposes. If the case settles on or after October 1, 2010, defense has to report, no matter whether the settlement is for TPOO or has ORM.

If the case settles on or after August 1, 2010, you would also have the obligation to verify and resolve any conditional payments made by Medicare from date of injury to date of settlement. Therefore, there are two aspects to Medicare reporting, one from the defense and one from the plaintiff and depending on when the case settles and the terms of the settlement determines who has to report.

With regards to your second question, the obligation to consider and protect Medicare's interests includes protecting its future interests. That means, you should ask and answer the question "Is a MSA appropriate under these case specific facts?" You are correct in your deduction that, based on your case specific facts, a MSA would not be appropriate and the guidance in the August 2009 MSA White Paper is as good today as the day it was published. Please let me know if you have additional questions.