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WRAPPING A MEDICARE SET-ASIDE ARRANGEMENT INSIDE A SPECIAL NEEDS TRUST

by Thomas D. Begley, Jr., Esquire, CELA

In any recovery involving a personal injury case, the interest of Medicare must be considered.[1] The idea is that because Medicare is a secondary payer, a beneficiary should not be permitted to receive a recovery for future medical care, pocket the money, and then bill Medicare for that future medical care.

Are MSAs Appropriate in TPL Cases?

A Medicare Set-Aside Arrangement (MSA) is never required. In the context of Workers’ Compensation (WC) settlements it is a safe harbor. It should be a safe harbor in the context of Third Party Liability (TPL) settlements as well.

In June 2012, The Centers for Medicare and Medicaid Services (CMS) issued a Notice of Proposed Rulemaking.[2] The rulemaking would outline procedures for MSAs in TPL cases. The Office of Management and Budget (OMB) did not approve the proposed rule and CMS withdrew it on October 8, 2014.[3] That leaves practitioners in the same place they were in prior to October 8, 2014. The personal injury attorney, therefore, has five alternatives to consider with respect to an MSA:

  1. Do nothing to protect Medicare and assume the risk that the rules will be enforced in his case, his client will be denied Medicare coverage for future medicals and possibly bring a malpractice action against the attorney;
  1. Do nothing but draft releases documenting that the plaintiff has been advised of Medicare’s possible interest and that he knowingly agrees to assume any risk;
  1. Be prepared to show that Medicare’s interest has been protected by shifting the primary payer – such as a continuing health insurance policy – and assume the risk that the health insurance policy will remain in place and that the person primarily being covered by the policy will not lose his job, die, retire, or become disabled;
  1. Prepare an allocation report, but do not submit to CMS for approval, and fund the MSA;
  1. Prepare and submit the MSA to CMS for approval.

The author recommends the fourth alternative to avoid any risk.

[1] 42 U.S.C. §1395y(b)(2).

[2] 42 C.F.R. Parts 405 and 411; 77 Fed. Reg. 35917-35921 (Jun. 15, 2012).

[3] RIN: 0938-AR43 EO 12866 Meetings.

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