cms Tag Archives — Florida Injury Attorney Blawg

Our law firm handles both workers’ compensation and personal injury cases, claimant’s/plaintiff’s side only. For years we have been dealing with Medicare Set-Asides (MSA) in our workers’ compensation cases. We have not been doing it in our personal injury cases. It may be time to start.

A Medicare Set-Aside is a legal device used to make sure Medicare covers future medical expenses associated with accident-related injuries.

When Medicare began in 1966, it was the primary payor for all claims except for those covered by Workers’ Compensation, Federal Black Lung benefits, and Veteran’s Administration (VA) benefits. In 1980, Congress passed legislation to expand the exception list to include the following plans:

Liability insurance plans (automobile, premises)
No Fault (PIP)
Self-Insured

All of these plans, rather than Medicare, are considered primary payors of medical expenses covered by the respective policies. In 2007, Congress passed legislation imposing reporting requirements on primary payors. The requirements, which involve furnishing Medicare with claim-related information, are laid out in section 111 of the Medicare, Medicaid, and Schip Extension Act of 2007. The purpose of the requirements is to keep Medicare from paying for medical care that is otherwise the responsibility of primary payors. Congress has decided that Medicare, which is a taxpayer-funded program, should not bear primary responsibility for medical expenses covered by insurance policies and self-insureds.

Medicare is a taxpayer-funded federal health insurance program that pays some health insurance costs. People are eligible for Medicare when they turn 65 years old. In addition, Medicare is automatically available 24 months after becoming entitled to Social Security Disability Income (SSDI). (Date of entitlement is the date of disability plus a five month waiting period. For example, if the date of disability is June 1, 2024, the date of entitlement is November 1, 2024, meaning that the earliest the applicant will qualify for Medicare is November 1, 2026 — there are exceptions to this rule if the disabling diagnosis is End Stage Renal Disease or ALS.)

Medicare will not pay the medical expenses associated with a job accident while the workers’ compensation carrier is paying for the care. This is simple and straightforward. Matters become more complicated when a settlement of the workers’ compensation case is contemplated.

While the workers’ compensation carrier will not pay for medical care after a settlement, Medicare places conditions on paying for post-settlement accident-related medical services. Before it begins paying, Medicare requires that a portion of the settlement proceeds be depleted on accident-related medical expenses.

This requirement does not apply in every instance. It is only triggered under these circumstances:

The total workers’ compensation settlement amount is over $25,000 and the claimant is a Medicare beneficiary.
The claimant is not a Medicare beneficiary, but expects to enroll within 30 months of the settlement date, and the total settlement amount is over $250,000.

When the requirement is triggered, Medicare should be presented with a proposed amount to be paid from the workers’ compensation settlement before the settlement becomes binding. While the settlement does not have to be made contingent on Medicare’s approval, the workers’ compensation insurance carrier will insist on it. In most cases, it’s also a good idea for the claimant. The proposal is called a Medicare Set-Aside (MSA).

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Jeffrey P. Gale, P.A. /// Personal Injury Liability Cases — The Perils of Ignoring Medicare’s Future Interest