Question: I have a case that has settled for a small amount because the client needed the money to stave off a foreclosure (long story) According to treating doctor,the client will need future care, and she is Medicare eligible (SSD). I have advised my client that in consideration of Medicare's interests, she should put some money aside for future med care that will in all likelihood be paid by Medicare. She says she needs the money, and will not put the funds aside. Can I have her sign off against my advice, take all her settlement money, and leave me protected from Medicare coming back at me in the future?
Answer: Great Question! The Medicare Set Aside (MSA) issue is one fraught with perils for counsel these days. On the one hand, you are charged with advising your client about the appropriate ways to protect their future Medicare benefits by reviewing the MSA issue and arriving at a reasonable conclusion as to why an MSA is or is not appropriate. On the other hand, when the client ignores the issue (or addresses it then ignores the results of that analysis), CMS guidance [in the worker’s compensation context] seems to indicate that CMS could pursue plaintiff’s counsel on the issue if handled incorrectly. It is reasonable to suspect CMS believes the same in the liability context.
We're advocates for having a well-documented file on the issue. As part of that, clients receive an MSA Disclosure Form which they can use to review the MSA issue with the client and get the client’s sign off that they understand the ramifications and repercussions for failure to address the MSA issue properly. With a signed acknowledgement from the client in the file saying they have been fully advised about the MSA issue and understand that they run the risk of losing their Medicare benefits if handled inappropriately, we are hard press to see what additional steps an attorney could take.
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