MSAs In Liability Settlements

Question: Has your thinking with respect to liability settlement MSAs changed at all since your 2/16/09 paper on misinformation on MSAs in Liability Settlements?

Answer: In short, our thinking remains the same because there has been no change in the law since that paper dated 2/16/09. Furthermore, there has been no new guidance published by Medicare with regards to the use of MSAs in liability settlements. The obligation remains the same as it always has been under the Medicare Secondary Payer Act: to consider and protect Medicare's interests, understanding that obligation is two-fold (past and future). While settling parties must consider and protect Medicare's future interest at the time of settlement, that does not automatically mean you pay Medicare money in the form of setting up a MSA. What it does mean is that the settling parties should review the currently enacted law and guidance regarding MSAs in light of their case specific facts and then determine if a MSA is appropriate. No matter how that question is answered (MSA is appropriate or MSA is not appropriate), the settling parties should document their files and memorialize the fact that Medicare's future interest has been considered and protected at the time of settlement. A fully documented file may be your best defense against any future concerns.

For a deeper discussion about the use and propriety of MSAs in liability settlements, please click here to view the MSA White Paper dated August 19, 2009. The guidance provided therein is as good now as it was then. I am also happy to help you find the appropriate ways to document your files so that you can ensure you have met your statutory obligation to consider and protect Medicare's future interest.