We have written in the past about the uncertainty surrounding whether, and under what circumstances, a plaintiff who settles a personal injury lawsuit must set aside a sum of money to cover future medical expenses that would otherwise be covered by Medicare. This has long been required in workers’ compensation settlements, but there is no regulation that explicitly requires a Medicare Set Aside (“MSA”) in a PI settlement. There is only a vague requirement that Medicare’s interests be protected. In 2012, the Center for Medicare and Medicaid Services (“CMS”) proposed a rule that would require MSA’s in PI cases, but then withdrew it.
Recently, a federal trial judge for the District of Arizona ruled:
No federal law or CMS regulation requires the creation of a MSA in personal injury settlements to cover potential future medical expenses. . . . There may be a day when CMS requires the creation of MSA’s in personal injury cases, but that day has not yet arrived.
Aranki v. Burwell, 2015 WL 9311661, Case No. CV-15-0668-PHX-SMM, order dated 10/19/15.
While this does not resolve this issue for good, it certainly gives plaintiff’s lawyers (and others) a solid basis for refusing to prepare MSA’s (and thereby avoiding the delays and complications that come along with them). Typically, it is defense counsel who insists on the creation of an MSA, out of concern that CMS could later seek to assess penalties against any or all of the parties (or lawyers) for having failed to adequately protect CMS’ interests.
However, in light of the fact that CMS, having been well aware for years about the ongoing confusion surrounding MSA’s, has failed to implement a rule requiring them in PI settlements (after having explicitly considered it) and with a federal judge now having ruled that MSA’s are not required, it is difficult to imagine CMS having any basis for seeking such penalties.
Further reading: An Explanation of Medi-Cal and Medicare Liens and Settlements
My family experienced a tremendous loss as a result of my father’s death. During the entire process of investigation and settlement of our case, we were treated with the utmost professionalism by the Booth & Koskoff attorneys and staff.
– Dale Magner
“Because of Roger’s experience and professionalism, I was able to focus on the others things I needed to do for my brother to care for him during this time. He was a godsend, and I would highly recommend Roger and his staff.”
– Penny Vincelli
The lawyers and staff at Booth & Koskoff were efficient, thorough, helpful and always available, even on weekends. I am very pleased with my overall experience, and I would recommend Booth & Koskoff to anyone who needs an excellent attorney.
– Keith Schultz
“From the moment I contacted Booth & Koskoff from my hospital bed to the eventual settlement of my case, I experienced nothing but outstanding assistance and representation.”
– Claire Rexon
“We felt lucky like we were referred to Booth & Koskoff by someone we trusted. Richard’s professionalism and tenacity showed that he definitely was in our court.”
– John Mahoney
“Mr. Booth did an incredible job resolving the case for us, and we are very thankful for the successful ending to our lawsuit. Thank you for your hard work Mr. Booth. You will always be our family lawyer and friend.”
– Sam Kirakosyan
When I met with Roger, he was honest, genuine, and straight-forward on how we would proceed. Roger took a leap of faith when taking this case. He trusted what I said to be true, and wasn’t afraid to proceed.
– Cynthia Mitchell