When to take Medicare’s Interests into account: MSA allocation and MSA administration services, related to MSP Act, for Medicare Set Aside Workers Compensation claims, Medicare Set Aside Personal Injury claims, or Medicare Set Aside Liability claims.

Guidelines of When to Take Medicare’s
Interests Into Account

Medicare’s interests must be taken into account in
every settlement where the MSP Act applies. In other
words, Medicare’s interests must be considered whenever
a claimant has received Medicare benefits related to the
incident in addition to whenever a claimant is receiving monies
for future medical care associated with the incident that Medicare
would otherwise cover. Stated differently, neither the claimant nor the
responsible primary payer may transfer payment responsibility to Medicare for past or future medical expenses related to the incident.

Regarding Medicare’s future interests, CMS has handed down several Memorandums since 2001 that outline the guidelines of when and how to take Medicare’s interest into account. Because CMS has not provided any policies regarding liability claims, the only policies that exist and that can be used as guidelines are the policies that apply to workers’ compensation cases. These workers’ compensation policies are described below, and they apply whenever a workers’ compensation case includes a component for future medical care that Medicare would otherwise cover. Until such time as CMS issues new policies, the policies below are the best and only guidelines available for liability settlements.

If Claimant is a Current Medicare Beneficiary

If the claimant is a current Medicare beneficiary at the time of settlement, Medicare requests that the settlement and set aside allocation be submitted for approval only if the settlement is for more than $25,000. While Medicare recognizes that there is no statutory basis for the mandatory request, the stated benefit to the Medicare beneficiary is that once an allocation is approved, future Medicare coverage is assured after the approved allocation has been appropriately exhausted. 7-23-01, 5-7-04, 7-11-05, and 4-25-06 CMS Memorandums.

If Claimant is Reasonably Expected to Become Medicare Beneficiary

If the claimant is not yet a Medicare beneficiary, Medicare expects that its interests will be taken into account by making a reasonable allowance for future medical costs whenever the claimant can reasonably be expected to become Medicare-eligible within 30 months of the settlement and the settlement is above $250,000. If such an allowance is not made in the form of an allocation or set-aside arrangement for future medicals, Medicare may claim the entire settlement amount as an allowance for medicals. In such a circumstance, Medicare will pay no benefits on behalf of the claimant for any medical services that may be linked to the injury until the entire settlement amount is exhausted which would also include attorney fees and costs.
7-23-01, 4-22-03, and 5-23-03 CMS Memorandums.

If Claimant is Not Expected to Become Medicare Beneficiary

If the claimant is not a current Medicare beneficiary, is not expected to become a Medicare beneficiary within 30 months following the settlement, and the total settlement amount is less than $250,000, Medicare’s position is that they waive any interest in the settlement. However, Medicare officials have warned that this waiver is always subject to the Office of General Counsel review and change. 7-23-01, 4-22-03, and 5-23-03 CMS Memorandums.