Medicare Set-Asides

    As a workers’ compensation attorney, one of the topics that has aided in my follicle impairment is a Medicare Set-Aside (MSA). When do we need an MSA? When does Medicare need to approve of our MSA? What if Medicare changes the amount of our MSA? If you work in the business, these are questions you have certainly asked yourself at one time or another.

    Before getting too far into the weeds of an MSA, the first topic we need to discuss is what exactly an MSA is. It is simply a projection of anticipated medical needs for an injured claimant for purposes of protecting Medicare’s interests. In essence, Medicare does not want to pay for medical treatment for an injured claimant that the workers’ compensation insurance company should be paying for. We hire third party vendors to prepare these MSA’s for us which try to accurately predict the amount of medical treatment needed throughout an injured employee’s life and pay that amount to the injured employee so that Medicare is not stuck holding a bill for medical treatment for those services rendered.

    These MSA’s are a relatively new phenomenon. Years ago, if a claimant was on Medicare, attorneys would settle the future medical component of the claim for pennies on the dollar and push that expense on Medicare to handle the future medical treatment. Medicare caught wind of this and decided to put an end to that practice. Now, we are to “consider Medicare’s interest” when settling our claims. For most insurance carriers and employers, considering Medicare’s interest oftentimes involves obtaining an MSA.

    Now that we know what an MSA is, and the purpose of same, we next need to consider scenarios where we actually need to have an MSA prepared. Simply getting an MSA can be useful on many fronts. If the future medical is complicated, you may want one to give an indicator of what the future medical may consist of for settlement purposes. If a claimant is on SSD, the claim could be retroactive to the date of injury which could make the claimant a Medicare beneficiary without the full 30 months of wait time. There are other times an MSA could be useful/necessary as well.

    However, assuming the claimant is on Medicare, I always recommend obtaining an MSA to protect the interest of Medicare. The more pressing issue then becomes whether or not the MSA needs to be submitted to Medicare for approval. The two scenarios where your MSA needs to be submitted to Medicare are as follows:

1. The claimant is on Medicare and the total settlement is greater than $25,000.00; or

2. The claimant has a reasonable expectation of Medicare enrollment within 30 months of the settlement date AND the anticipated total settlement for future medical expenses and disability/wage loss over the life or duration of the settlement is expected to be greater than $250,000.00.

    If your claim meets either of these requirements, you are required to submit your MSA to Medicare. Medicare then considers your recommendations for the future medical of the claimant and has the option to either accept the recommendation, increase or decrease the amount. Once Medicare makes their decision, it is final. You will be bound by the amount approved by Medicare, and if you so choose to proceed with settling the future medical component of the claim, you will do so at the figure approved by Medicare. That can be done by paying a lump sum or through an annuity. That becomes a negotiation point.

    Every company varies on exactly how they handle MSA’s. In fact, some of my clients have other thresholds in place. The information found herein includes the figures as outlined by Medicare and what I recommend to you, but I will always defer to your third party vendor if they say otherwise.

    There are many companies who can prepare and handle the MSA process for you. My recommendation to you is to find one that is quick, efficient and easy to work with. My friend Carlos Ayestas works with a boutique firm called Adjuster Preferred Solutions (APS). What is unique about APS, and what I really enjoy, is that you will actually be in contact with the person preparing your MSA and can have input if there are special circumstances around your case which need assistance. If you do not have a dedicated vendor, give Carlos and APS a chance and I think you will be really happy you did. Their bio is below and I have attached their information under the “USEFUL LINKS” tab.

        “Adjuster Preferred Solutions offers nationwide MSA services and bill review. Our team has decades of experience in providing cost containment and settlement solutions. The tenure of our clients and our core people is a testament to the superior service we consistently deliver. We provide our staff with the training and technology to deliver sensible and cost effective solutions. We work closely with each client to deliver customized solutions. We do not want to meet your expectations, we want to exceed them.”

    P.S. I try to provide information that is generic enough so that most people can understand, while also still being informative. However, I also have clients who need more in-depth topics addressed. If you ever want me to drive/fly to you and provide a detailed seminar, please email me about doing so and I will be happy to assist you. In fact, I can offer 2-8 CEU hours for adjusters that can help meet your yearly quota as well. Let me know if this is something I can ever do for any of you.